DocketNumber: No. CV-91-0399662S
Citation Numbers: 1992 Conn. Super. Ct. 299
Judges: SATTER, STATE TRIAL REFEREE
Filed Date: 1/27/1992
Status: Non-Precedential
Modified Date: 7/5/2016
Section
The facts here are that plaintiff did give notice to defendant, (dated August 9, 1991), with the complaint as follows:
"A PERSON WHO IS UNEMPLOYED OR UNDEREMPLOYED AND WHO HAS (FOR A CONTINUOUS PERIOD OF AT LEAST TWO (2) YEARS PRIOR TO THE COMMENCEMENT OF THIS FORECLOSURE ACTION) OWNED AND OCCUPIED THE PROPERTY BEING FORECLOSED AS SUCH PERSON'S PRINCIPAL RESIDENCE, MAY BE ENTITLED TO CERTAIN RELIEF PROVISIONS UNDER CONNECTICUT GENERAL STATUTES SECTION
The return date of the complaint was September 3, 1991. Defendant brought the complaint and notice to a New York attorney, who had correspondence with plaintiff's attorney but did not file an appearance. Eventually the file came to defendant's present attorney who filed an application for protection from foreclosure on December 6, 1991, ninety-two days after the return date.
On December 9, 1991 she filed the instant motion for permission to file a late application for protection. In support of the motion defendant claims. (1) she never got the notice mandated by statute because she gave the papers to a New York attorney who did not properly advise her of her rights under
The court finds defendant in fact got precisely the notice required by
On the issue of whether or not this court can exercise equity jurisdiction to obviate a statutory precondition to a statutory remedy, the rule is that equity follows the law and "when the claim is a legal claim or when the penalty [or relief] is mandatorily fixed by statute, equity will as a rule apply the requirement of the statute and not release the claimant." Braithwaite v. Town of Wallingford, 5 Conn. L.Rptr. No. 10, 261, 262 (Dec. 16, 1991).
The rule also is that when a statute creates a remedy which does not exist in the common law, all the statutory requirements must be complied with for the statutory remedy to be granted. Thus, as to Mechanic's liens the Supreme Court said in H S Torrington Associates v. Latz Engineering Co.,
The court concludes that it lacks the power to grant defendant's motion to file a late application for protection from foreclosure under
R. SATTER STATE TRIAL REFEREE