Great Country Bank v. White, No. 0102989 (Jan. 9, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff has instituted this foreclosure action of a second mortgage which it holds on property of the defendants in Southbury, Connecticut. The note secured by the second mortgage dated July 8, 1987 in the face amount of $50,100.00 is subsequent to a prior mortgage dated March 26, 1968 in the face amount of $150,000.00. Both the first and second mortgages were issued to the plaintiff as security for each of the above notes. The plaintiff has sought to foreclose the second mortgage only which allegedly is in default.

The defendants have filed an Application for Protection from Foreclosure, pursuant to Section 49-31d et seq. of the Connecticut General Statutes. They contend they are entitled to the protection provided under the statutes because they meet the qualifications provided by the legislature. The plaintiff in response to the defendants application argues that the above statutes apply only to a foreclosure of a first mortgage, and therefore since a second mortgage is being foreclosed, the defendants are not entitled under the statutes to the relief sought. CT Page 683

Section 49-31d states as follows:

Definitions. For the purpose of sections 49-31d to 49-31i, inclusive:

(5) "Lender" means any person who makes or holds mortgage loans in the ordinary course of business and who is the holder of any first mortgage on residential real estate which is the subject of a foreclosure action. (Emphasis added)

The term lender thereafter referred to in subsequent sections is subject to the above definition. Based on this definition of a lender as applied to all the sections of the Act, the defendants do not qualify for the protection provided because the instant foreclosure relates to a second mortgage.

For the foregoing reasons the relief sought by the defendants is denied.

ZOARSKI, JUDGE