American Tax Funding, LLC v. First Eagle Corp.

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AMERICAN TAX FUNDING, LLC v. FIRST
EAGLE CORPORATION ET AL.
(AC 42610)
Lavine, Moll and Flynn, Js.
Syllabus
The plaintiff, an assignee of municipal tax liens for the tax years 2005, 2006,
2007, and 2008, sought to collect the unpaid taxes on the 2006 through
2008 tax liens. The tax liens had been assigned to the plaintiff by the
city of Hartford pursuant to statute (§ 12-195h), which grants to the
assignee the same powers and rights the municipality would have if the
lien had not been assigned. The plaintiff previously brought a separate
action to foreclose on the 2005 tax lien, in which it obtained a judgment
of strict foreclosure that it later assigned. In the collection action, the
defendant property owner asserted various special defenses, including
that the plaintiff’s claims were extinguished pursuant to statute (§ 12-
195) because the plaintiff had obtained a judgment of strict foreclosure
on the 2005 tax lien, and that the defendant’s debt had been satisfied.
Section 12-195 provides that when a municipality acquires real estate
by foreclosure, the acquisition is deemed a cancellation by the municipal-
ity as against the tax collector for unpaid taxes. The trial court rendered
judgment in favor of the defendant on these two special defenses, from
which the plaintiff appealed to this court. Held:
1. The trial court properly found that, pursuant to § 12-195 and the controlling
precedent of Municipal Funding, LLC v. Gallulo (72 Conn. App. 755),
the 2006 through 2008 tax liens were extinguished by the judgment of
strict foreclosure rendered in favor of the plaintiff or its assignee in the
foreclosure action on the 2005 tax lien and, thus, barred the plaintiff
from recovering in this action; moreover, because the plaintiff or its
assignee acquired title to the property by foreclosure, pursuant to § 12-
195, all of its claims, in whatever form those claims might take, were
extinguished, a result that coincides with the common-law rule that
prohibits double recovery and provides that a plaintiff may be compen-
sated only once.
2. This court declined to review the plaintiff’s claim that the trial court erred
when it concluded that the defendant’s debt had been satisfied as the
plaintiff failed to present an adequate record for review.
Argued January 15—officially released March 3, 2020
Procedural History
Action to recover certain unpaid municipal taxes
brought to the Superior Court in the judicial district of
Hartford, where the action was withdrawn as against
207 Main Street Investors, LLC; thereafter, the case was
tried to the court, Cobb, J.; judgment for the named
defendant, from which the plaintiff appealed. Affirmed.
David L. Gussak, for the appellant (plaintiff).
Gregory W. Piecuch, for the appellee (named
defendant).
Opinion
FLYNN, J. In this collection action, the plaintiff,
American Tax Funding, LLC, appeals from the judgment
of the trial court rendered in favor of the defendant
First Eagle Corporation1 on two of its special defenses.
The court concluded that the plaintiff, the assignee of
municipal tax liens, was barred from recovery. On
appeal, the plaintiff claims that the court (1) improperly
determined that its claims were extinguished pursuant
to General Statutes § 12-195, and (2) erred when con-
cluding that the defendant’s debt to the plaintiff had
been satisfied. We disagree and, accordingly, affirm the
judgment of the trial court.
The following facts, as found by the trial court, are
relevant. The defendant failed to pay its property taxes
on real property, located at 40 John Street in Hartford
(property), for the tax years 2005, 2006, 2007, and 2008.
This resulted in statutory tax liens in favor of the city
of Hartford (city) for each of those tax years in the
respective amounts of $12,100.55, $10,360.15, $9,465.50,
and $10,723.31. On June 26, 2008, June 18, 2009, and
June 25, 2010, the city assigned to the plaintiff its rights
as to the four tax liens, pursuant to General Statutes
§ 12-195h, which permits a municipality to assign for
consideration liens filed by the tax collector. Each
assignment provided that the city assigned ‘‘all of the
[c]ity’s right, title and interest in and to certain liens
created by law in favor of the [c]ity of Hartford, Con-
necticut to allow the tax collector of such [c]ity to
secure unpaid taxes on real property . . . . By execu-
tion of the [a]ssignment, the [c]ity is assigning and the
[a]ssignee is assuming, all of the rights at law or in
equity, obligations, powers and duties as the [c]ity of
Hartford and the [c]ity’s tax collector would have with
respect to the above liens . . . .’’
On February 17, 2015, the plaintiff initiated a separate
foreclosure action seeking to foreclose on the 2005 tax
lien only. The plaintiff failed to identify in its foreclosure
complaint the 2006 through 2008 tax liens that it also
held, despite the requirement under Practice Book
§§ 10-69 and 10-702 that all encumbrances of record be
pleaded in the complaint. On June 12, 2015, the plaintiff
moved for a judgment of strict foreclosure. The plain-
tiff’s affidavit of debt stated the amount of debt as
$23,810.15. The plaintiff submitted an appraisal of the
property and an affidavit of the appraisal, which estab-
lished that the fair market value of the property was
$105,000. The plaintiff’s foreclosure worksheet, form
JD-CV-77, represented the fair market value of the prop-
erty to be $105,000. Foreclosure worksheets are filed
by the plaintiff for the guidance of the court. The fore-
closure worksheet also listed the total encumbrances
prior to the plaintiff’s 2005 lien to be $65,332.03, an
amount equal to the 2006 through 2008 tax liens.3
On June 29, 2015, the court granted the plaintiff’s
motion for a judgment of strict foreclosure and found
that the fair market value of the property was $105,000,
and the debt was $23,810.15; the court set a law day of
August 24, 2015. The law day passed without redemp-
tion. On August 26, 2015, the combined total of the 2005
through 2008 tax liens was $93,260.19, and the total
payoff amount including attorney’s fees and costs was
$105,259. On August 27, 2015, the plaintiff assigned the
foreclosure judgment to City Shelter, LLC (City Shel-
ter).4 The plaintiff filed a certificate of foreclosure on
August 28, 2015, despite the fact that the plaintiff had
assigned the foreclosure judgment to City Shelter. City
Shelter sold the property on April 8, 2016, for $63,000,
and received a net amount of $44,933.81 after expenses.
Prior to the passage of title to the property and in
temporal proximity to the institution of the foreclosure
action, the plaintiff initiated the present collection
action by a complaint dated February 17, 2015, and filed
February 25, 2015. The plaintiff sought to collect the
taxes on the liens that the city had assigned to it for
the tax years 2006, 2007, and 2008. The defendant filed
an answer and asserted special defenses, including that
the plaintiff’s ability to recover was barred by (1) the
judgment of strict foreclosure, and (2) the fact that the
plaintiff had received payment and satisfaction of the
debt through the foreclosure action.
In its February 5, 2019 memorandum of decision, the
court stated that the plaintiff’s position was that it had
not been made whole because, even though it had
obtained a judgment of strict foreclosure of the prop-
erty, City Shelter sold the property for $63,000, which
was less than the total value of the liens. The court
noted that, ‘‘[a]t trial, the plaintiff’s president admitted
that their goal in this action was to obtain a double
recovery, that is, the property valued at $105,000 and
an $85,000 money judgment.’’ Relying on Municipal
Funding, LLC v. Galullo, 72 Conn. App. 755, 806 A.2d
601, cert. denied, 262 Conn. 915, 811 A.2d 1292 (2002),
the court reasoned that the plaintiff, which had stepped
into the shoes of the municipality, was bound by § 12-
195, which expressly provides that the acquisition by
a municipality of real estate by foreclosure extinguishes
all of its claims by the tax collector for unpaid taxes.
The court concluded that ‘‘the assigned tax liens at issue
were extinguished by the judgment of strict foreclosure,
and, therefore, there exists no liens or debt for the
plaintiff to collect upon in this case.’’
The court also found in favor of the defendant on its
special defense of payment and satisfaction. The court
found that, ‘‘[a]t the time of the foreclosure judgment,
the plaintiff’s four liens had a monetary value, with
interest, of approximately $93,000, an amount just
below the fair market value of the property of $105,000.
Therefore, as the result of the foreclosure judgment,
the plaintiff or its assignee received title to property
that had a greater value than the four liens. Thus, the
defendant’s debt to the plaintiff, resulting from the
assigned tax liens, was essentially satisfied by the trans-
fer of the title to the property to the plaintiff or its
assignee. The plaintiff cannot now recover again in this
action.’’5 This appeal followed.
I
The plaintiff claims that the court improperly con-
cluded that the judgment of strict foreclosure rendered
in favor of the plaintiff or its assignee in its foreclosure
action on the 2005 tax lien extinguished the 2006
through 2008 tax liens, thereby barring the plaintiff from
recovery in the present action. The defendant counters
that the judgment of strict foreclosure bars the plaintiff
from taking further action on the 2006 through 2008
tax liens and contends that to rule otherwise would
require Municipal Funding, LLC v. Galullo, supra, 72
Conn. App. 755, to be overruled, which the plaintiff does
not ask this court to do. We agree with the defendant.
This claim requires us to interpret the statutes regard-
ing municipal lien assignment and extinguishment, to
which issue we afford plenary review. See Id., 761.
A municipality is a creature of the state and can
only exercise powers that are expressly granted to it
or which are otherwise necessary to the discharge of
its duties. See Bredice v. Norwalk, 152 Conn. 287, 292,
206 A.2d 433 (1964). By statute, a municipality is author-
ized to assign tax liens. Section 12-195h provides in
relevant part: ‘‘Any municipality . . . may assign, for
consideration, any and all liens filed by the tax collector
to secure unpaid taxes on real property as provided
under the provisions of this chapter. . . . The assignee
or assignees of such liens shall have and possess the
same powers and rights at law or in equity as such
municipality and municipality’s tax collector would
have had if the lien had not been assigned . . . .’’
The plaintiff chose to pursue a foreclosure action on
one of its tax liens and obtained a judgment of strict
foreclosure, despite the fact that it had been assigned
three additional subsequent tax liens by the city. As the
assignee of municipal tax liens, the plaintiff stands in
the shoes of the municipality and is bound by the extin-
guishment provision of the municipal tax liens statute,
§ 12-195, which provides in relevant part that ‘‘[w]hen
any municipality acquires real estate by foreclosure
. . . . [t]he acquisition of such real estate by the munic-
ipality shall be deemed a cancellation by such munici-
pality of all of its claims against the tax collector for
unpaid taxes and assessments, interest or lien fees
assessed against such real estate. . . .’’ (Emphasis
added.)
In Municipal Funding, LLC v. Galullo, supra, 72
Conn. App. 763–65, this court applied § 12-195 to facts
similar to those in the present case. In Galullo, the
plaintiff was an assignee of the 1993, 1994, and 1995
municipal tax liens of the city of Waterbury for certain
real property. Id., 757–58. The plaintiff took title to the
subject property through an action to foreclose on the
1993 and 1994 tax liens. Id., 758. Prior to the passage
of the law days, the property was damaged by fire, and
the insurer of the former owner of the property issued
a check for partial payment of the damage caused by
the fire, and made the check payable to the plaintiff,
the city, and three other entities. Id. The plaintiff filed
an application for an order of mandamus asking the
trial court to order the defendant, the tax collector of
the city of Waterbury, to endorse the check to the plain-
tiff as payment for its liens. Id. In granting the defen-
dant’s motion for summary judgment, the trial court
issued a ‘‘thoughtful and well reasoned’’ decision con-
cluding that all of the plaintiff’s tax liens, including the
1995 lien, had been extinguished when the plaintiff took
title to the property. Id., 759. The trial court reasoned
that § 12-195 ‘‘provides that when a municipality fore-
closes on a tax lien and acquires absolute title to the
property, all other liens or claims held by the municipal-
ity against the property are cancelled.’’ Municipal
Funding v. Galullo, Superior Court, judicial district of
Waterbury, Docket No. CV-XX-XXXXXXX-S (April 30, 2001)
(29 Conn. L. Rptr. 682, 684), aff’d, Municipal Funding,
LLC v. Galullo, 72 Conn. App. 755, 806 A.2d 601, cert.
denied, 262 Conn. 915, 811 A.2d 1292 (2002). On appeal,
this court rejected the plaintiff’s claim that because the
fire had occurred before the law days passed, it was
entitled to the insurance proceeds. Municipal Funding,
LLC v. Galullo, supra, 762–64. This court held that ‘‘the
critical fact is not whether the fire occurred before the
first law day, but that the plaintiff took title to the
property. Just as the plaintiff stepped into the shoes of
the municipality as an assignee for purposes of prece-
dence and priority, it also is bound by the extinguish-
ment provision of . . . § 12-195. . . . [B]y taking title
to the property, the plaintiff lost its rights to collect on
all of its liens, including its 1995 lien.’’ Id., 762–63.
According to the express language of § 12-195, and
the controlling precedent of Municipal Funding, LLC
v. Galullo, supra, 72 Conn. App. 755, the plaintiff is
barred from bringing the present collection action on
the 2006 through 2008 tax liens because all of the plain-
tiff’s tax liens, including the 2006 through 2008 tax liens,
were extinguished when the plaintiff or its assignee
took title to the property in the foreclosure proceeding.
The plaintiff counters that § 12-195 does not extinguish
its power to exercise a municipality’s ability to institute
a collection action on the underlying debt pursuant to
General Statutes § 12-161.6 The plaintiff contends that
it released the 2006 through 2008 liens when City Shelter
sold the property for $63,000 in 2016, but that it received
no portion of the sale proceeds in return for the
releases.7 The plaintiff argues that it is permitted to
bring a collection action on the 2006 through 2008 tax
liens pursuant to § 12-195h, which provides in relevant
part that ‘‘[t]he assignee shall have the same rights to
enforce such liens as any private party holding a lien
on real property including, but not limited to, foreclo-
sure and a suit on the debt. . . .’’ (Emphasis added.)
The plaintiff stresses that the language in § 12-195h
regarding ‘‘a suit on the debt’’ was added in 2013, by
No. 13-276 of the 2013 Public Acts, following the 2002
decision in Galullo. The amendment to § 12-195h does
not affect our resolution of this issue because our analy-
sis is controlled by § 12-195, which has not been
amended since 1998. Because the plaintiff or its
assignee acquired title to the property by foreclosure
then, pursuant to § 12-195, ‘‘all of its claims,’’ in what-
ever form those claims might take, were extinguished.
(Emphasis added.) This result coincides with the com-
mon-law rule prohibiting double recovery and providing
that a plaintiff may be compensated only once. See,
e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645,
663, 935 A.2d 1004 (2007).
The plaintiff further argues that General Statutes § 12-
172 specifically excludes the extinguishment of the 2006
through 2008 liens. Section 12-172 provides in relevant
part that ‘‘[n]o sale of real estate for taxes or foreclosure
of any lien shall divest the estate sold of any existing
lien for other taxes.’’ The plaintiff’s argument was
rejected by this court in Galullo. In that case, this court
concluded that its holding that the plaintiff lost its rights
to collect on all of its liens by taking title to the property
did not conflict with § 12-172. Municipal Funding, LLC
v. Galullo, supra, 72 Conn. App. 763. Relying on the
express language in § 12-172, the court reasoned that
‘‘ ‘[n]o sale of real estate for taxes or foreclosure of any
lien shall divest the estate sold of any existing lien for
other taxes’ ’’ and concluded that ‘‘the plain language
of § 12-172 and its relationship to other language in the
statutory municipal foreclosure scheme indicates that
this section applies only to real estate sales or foreclo-
sure by sale. It does not apply to instances of strict
foreclosure. . . . In addition to the plain language lim-
iting § 12-172 to foreclosures by sale, we note that in
1998, the legislature amended § 12-195 to distinguish
between strict foreclosures and foreclosures by sale or
auction. See Public Acts 1998, No. 98-35, § 1. Speaking
in favor of the amendment, which added the words
‘foreclosure by sale or auction’ to the statute, Represen-
tative John S. Martinez stated that ‘this bill would allow
municipalities to cancel unpaid taxes on parcels of land
acquired by municipalities through foreclosure by sale
or auction. Presently, the [statutory reference to ‘fore-
closure’] only allow[s] municipalities to cancel such
taxes when a parcel is acquired through strict foreclo-
sure.’ 41 H.R. Proc., Pt. 5, 1998 Sess., p. 1601. We con-
clude that the reverse also is true. Because § 12-172
refers only to sales of real estate for foreclosure of liens,
we conclude that it does not apply to strict foreclosure.
Accordingly, § 12-172 does not save the plaintiff’s 1995
lien from extinguishment.’’ (Emphasis omitted.) Id.,
763–64. Because § 12-172 does not apply to instances
of strict foreclosure, the plaintiff cannot prevail on
this argument.
For the foregoing reasons, we conclude that the court
properly found in favor of the defendant on its special
defense of extinguishment pursuant to § 12-195.
Accordingly, the court properly precluded the plaintiff
from recovering in the present collection action.
II
Although we have concluded that the court properly
found in favor of the defendant on its defense of extin-
guishment, we briefly discuss the plaintiff’s claims
regarding the second special defense, namely, satisfac-
tion of the debt. This claim is unreviewable. Although
the plaintiff claims that our review standard is plenary,
our resolution of the issues raised requires us to deter-
mine whether there is evidence in the record to support
the court’s findings or, even if there is such support in
the record, whether, on the basis of a review of the
entire evidence, we are left with a definite and firm
conviction that a mistake has been committed.8 See,
e.g., ARB Construction, LLC v. Pinney Construction
Corp., 75 Conn. App. 151, 156, 815 A.2d 705 (2003). It
is axiomatic that it is the plaintiff’s burden to prove its
claims on appeal and show that the court’s finding that
the debt had been satisfied was clearly erroneous.
Although the plaintiff challenges the court’s factual find-
ings, it has not provided us with transcripts. Practice
Book § 61-10 (a) provides: ‘‘It is the responsibility of
the appellant to provide an adequate record for review.
The appellant shall determine whether the entire record
is complete, correct and otherwise perfected for presen-
tation on appeal.’’9 Because the plaintiff has not met its
burden of providing an adequate record for our review,
we decline to review this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The action was withdrawn as to the defendant 207 Main Street Investors,
LLC. All references to the defendant are to First Eagle Corporation.
2
Practice Book § 10-69 provides: ‘‘The complaint in all actions seeking
the foreclosure of a mortgage or other lien upon real estate shall set forth,
in addition to the other essentials of such complaint: All encumbrances of
record upon the property both prior and subsequent to the encumbrance
sought to be foreclosed, the dates of such encumbrances, the amount of each
and the date when such encumbrance was recorded; if such encumbrance
be a mechanic’s lien, the date of commencing to perform services or furnish
materials as therein recited; and if such encumbrance be a judgment lien,
whether said judgment lien contains a reference to the previous attachment
of the same premises in the same action, as provided by General Statutes
§ 52-380a.’’
Practice Book § 10-70 (a) provides in relevant part: ‘‘In any action to
foreclose a municipal tax or assessment lien the plaintiff need only allege
and prove . . . (5) other encumbrances as required by the preceding sec-
tion. . . .’’
3
The plaintiff listed the 2006 through 2008 tax liens as prior encumbrances
on the foreclosure worksheet, in contravention of Practice Book § 10-69,
despite the fact that those liens are later in time and are therefore junior
to the 2005 lien. The plaintiff did not set forth in its foreclosure complaint,
which was admitted as a full exhibit in the present action, the 2006 through
2008 tax liens as either prior or subsequent encumbrances to the encum-
brance sought to be foreclosed on, nor did the plaintiff set forth the date
of such encumbrances or the amount of each and the date when such
encumbrances were recorded.
4
The plaintiff did not substitute City Shelter as the plaintiff in the foreclo-
sure action. The trial court in the present action determined that the certifi-
cate of title filed by the plaintiff indicated that title to the property passed
to City Shelter on August 29, 2015. It noted that neither the plaintiff nor the
defendant argued that this assignment had any material effect on the issues
in the collection action.
We note that the plaintiff did not amend the complaint to show the volume
and page number of the assignment of the foreclosure judgment on the land
records. The plaintiff did not raise as an issue on appeal that City Shelter
was the entity that took title to the property. Therefore, for purposes of
this appeal, we do not treat the assignment as having any material effect.
5
The court did not find in favor of the defendant on its special defenses
of judicial estoppel or laches.
6
The plaintiff argues that the defendant did not plead or raise in the trial
court that, under the circumstances of the present case, any and all of the
plaintiff’s remaining claims were extinguished pursuant to § 12-195. In the
exercise of our plenary review over the interpretation of the pleadings; see
Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d
367 (2012); we conclude that the defendant properly raised this defense.
7
We note that the remedy of a deficiency judgment is not available to a
municipality or its assignee. See Winchester v. Northwest Associates, 255
Conn. 379, 388, 767 A.2d 687 (2001).
8
The plaintiff asserts that the standard of review on all of its claims is
plenary. The arguments the plaintiff has made regarding the factual findings
underpinning the court’s conclusion regarding the defendant’s second spe-
cial defense involve questions of fact.
9
‘‘The commentary for [Practice Book] § 61-10 provides . . . that ‘[t]he
adoption of subsection (b) is not intended to preclude the court from declin-
ing to review an issue where the record is inadequate for reasons other
than solely the failure to seek an articulation . . . .’ ’’ Ippolito v. Olympic
Construction, LLC, 163 Conn. App. 440, 451 n.6, 136 A.3d 653, cert. denied,
320 Conn. 934, 134 A.3d 623 (2016).