DocketNumber: No. CV97 0059147S
Citation Numbers: 1998 Conn. Super. Ct. 13931, 23 Conn. L. Rptr. 458
Judges: CURRAN, S.T.R.
Filed Date: 11/20/1998
Status: Non-Precedential
Modified Date: 7/5/2016
On September 29, 1997, Webley filed a "Verified Motion to Reopen" the judgment of strict foreclosure, pursuant to General Statutes §
Law days commenced on April 13, 1998, and Occhipinti failed to redeem. Title to the property thus vested in the plaintiff on April 20, 1998. After taking title to the property, the plaintiff sought to eject the tenants of the building, including Webley. On June 23, 1998, Webley filed a motion to stay execution of ejectment and concurrently reclaimed her motion to open1 judgment filed on September 29, 1997, which had been marked off by agreement until the plaintiff took title to the property. On July 20, 1997, Webley filed a memorandum in support of her motion to open the judgment. On the same date, the plaintiff filed a memorandum in opposition and an objection to the motion to open.
"Practice Book § [17-43] is the vehicle by which to open a judgment rendered upon a default . . ." Pump Services Corp. v.Roberts,
Webley's motion to open the judgment was filed within four months from the date of judgment, and is verified by the oath of Webley. Thus, the only remaining questions are whether Webley has shown that a good defense existed at the time judgment was rendered and that she was prevented from making such a defense because of mistake, accident or other reasonable cause.
Webley alleges that she and Occhipinti entered into a "Section 8"4 lease on May 1, 1995, and attaches a copy of the lease to her memorandum. According to Webley, the plaintiff, as "owner"5 of the property, may only terminate a Section 8 lease under certain circumstances as set forth in the lease, which tracks the language of the federal statute and regulations. Webley thus argues that the federal Section 8 program preempts state common law, which provides that a judgment of strict foreclosure automatically extinguishes any prior tenancies; accordingly, Webley asserts that a valid defense existed at the time judgment was rendered in the foreclosure action. The court agrees.
Under a Section 8 lease, "the tenancy can only be terminated under certain circumstances." Atlantic Mortgage and InvestmentCorp. v. Pervis, Superior Court, judicial district of New Haven at New Haven (Housing Session), Docket No. 561076 (December 3, 1997) (Levin, J.) (
"If the owner wishes to terminate the HAP [housing assistance payment] contract for a business or economic reason, § 982.455 requires a 90-day notice to the tenant and the housing CT Page 13934 authority. Section 982.455 describes terminating the HAP contract as `opting out' of the program. In other words, the owner no longer wants to participate in the Section 8 program for business or economic reasons, but does intend to continue renting the premises. The owner does not have to show good cause against the current tenant, but good cause to discontinue renting to Section 8 tenants altogether . . . The notice must contain sufficient detail to enable the HUD [Department of Housing and Urban Development] field office to evaluate whether the owner has good cause and whether there are additional actions that can be taken by HUD to avoid the termination, and `must state that the owner and the housing authority may agree to a renewal of the HAP contract, thus avoiding the termination.' 24 C.F.R. § 984-455(b)(3)."Atlantic Mortgage and Investment Corp. v. Pervis,supra,
"(2) The following are some examples of `other good cause' for termination of tenancy by the Landlord: (i) Failure by the Tenant Family to accept the offer of a new Lease in accordance with paragraph (L) of this section; (ii) A Tenant Family history of disturbance of neighbors or destruction of property, or of living or housekeeping habits resulting in damage to the unit or property; (iii) Criminal activity by Tenant Family members involving crimes of physical violence to persons or property; (iv) The Landlord's desire to utilize the unit for personal or family use or for a purpose other than use as a residential unit; or (v) A business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, desire to rent the unit at a higher rental) . . ."
Pursuant to Connecticut common law, a lease is terminated by operation of law upon a judgment of strict foreclosure. See FirstFederal Bank v. Whitney Development Corp. ,
The federal statutory scheme does not discuss the effect of a foreclosure on the status of the Section 8 tenancy. The plaintiff argues that because the statutory scheme fails to address this issue, state law controls and the tenancy is terminated by operation of law. Conversely, Webley argues that the state common law irreconcilably conflicts with the federal scheme for the termination of a Section 8 lease and acts as an obstacle to the accomplishment of Congress' objectives for providing security of tenure for low-income tenants participating in the rental assistance program, and therefore the federal scheme preempts state common law.
There is a split in the Connecticut Superior Courts on the issue of whether the federal law preempts state law in this context. In Atlantic Mortgage and Investment Corp. v. Pervis,supra,
In Bristol Savings Bank v. Savinelli, Superior Court, judicial district of New Haven at New Haven, Docket No. 377478 (March 21, 1996) (DeMayo, S.T.R.) (
Judge DeMayo's decision in Bristol Savings Bank v. Savinelli adopts the sound reasoning of EMC Mortgage Corp. v. Smith, which determined that the federal scheme preempts Massachusetts state law, which, like Connecticut common law, provides for the automatic termination of tenancies upon foreclosure. The court inEMC Mortgage Corp. v. Smith found that "[t]he Section 8 statute does not provide in any manner for the automatic termination of a Section 8 tenancy" but, rather, provides specific notice and termination provisions. EMC Mortgage Corp. v. Smith, supra, Civ. No. 95-04794, pp. 13-15. Thus, "[i]t is impossible to apply the state common law foreclosure rule to Section 8 tenancies without creating a direct conflict with [the] notice and termination provisions." Id., 15. In addition, the court found that "[a] central purpose of the Section 8 program is to provide participating families with security of tenancy and reasonable assurance that, unless they breach a material term of their lease or the landlord has `good cause' to terminate the tenancy, they can continue to reside in their homes." Id., 17. Accordingly, the court determined that "[a]pplication of the state common law foreclosure rule to federally subsidized tenancies would frustrate the congressional mandate that Section 8 tenants be provided with reasonable security . . ." Id.
The reasoning of Bristol Savings Bank v. Savinelli and EMCMortgage Corp. v. Smith thoroughly and accurately addresses the relevant considerations applicable to the present case. The court finds that the federal law providing for Section 8 tenancies preempts the state common law for automatic termination of tenancies upon judgment of strict foreclosure. See BristolSavings Bank v. Savinelli, supra,
The plaintiff does not challenge Webley's assertion that she did not appear in the case because of an accident, mistake or other reasonable cause. The court finds that Webley has sufficiently demonstrated that she was prevented from making her defense because of mistake, accident or other reasonable cause. See Verified Motion to Reopen, ¶¶ 2-a. to 2.c. Therefore, Webley's motion to open the judgment of strict foreclosure is granted.
The Court
Curran, J.