DocketNumber: No. CV91-284925
Citation Numbers: 1992 Conn. Super. Ct. 5446, 7 Conn. Super. Ct. 890
Judges: <footnote_body>[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]</footnote_body> KATZ, JUDGE
Filed Date: 6/17/1992
Status: Non-Precedential
Modified Date: 4/18/2021
On December 9, 1992, the defendant in the above-captioned case filed an application for protection from foreclosure pursuant to Conn. Gen. Statute
In its objection thereto, filed on May 14, 1992, the plaintiff sets forth two grounds:
(1) that the defendants did not make the application within 15 days of the return day as required by
(2) that the application was followed by an answer and special defense despite
The defendant has argued that the 15 day rule is not mandatory, but even if it were, equity requires the relief sought because the plaintiff made misrepresentations to the defendants with regard to a possible forebearance plan which they believed was akin to the protection available to them under Conn. Gen. Statutes
In Fleet Bank v. Holmes, 5 Conn. L. Rptr. No. 19, 532 (2/24/92), the court, Satter J., when faced with an argument that equity should control and that failure to file the application within 15 days should not bar its consideration stated the following:
"[O]n 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, [
6 Conn. Super. Ct. 1104 ] 5 Conn. L. Rptr. No. 10, 261, 262 (December 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." Id. at 532-533.
The application for protection statutory scheme was obviously devised, not to benefit the lending institutions but rather to provide, as a matter of public policy, a mechanism to allow a homeowner who has suffered a sudden financial hardship an opportunity to restructure his financial affairs. There are clear interests in allowing borrowers who are in the difficult situation of foreclosure to try to keep their homes while still protecting the lenders' interests in collecting the debt and maintaining their interest in the collateral.1 And despite the dirth of legislative history of P.A. No. 83-29 and 84-373, it is certain that this statutory creation was devised as protection for the homeowner.
Where legislation is remedial it must be construed liberally. Mack Financial Corp v. Crossley,
The second argument advanced by plaintiff as to why the defendants should not be allowed to proceed with their application is that they raised special defenses to the complaint. The plaintiff points to
None of these allegations contest or challenge in any way the validity of the mortgage transaction itself. Therefore, they are not inconsistent with the purpose of
It is certainly true that a defendant could answer the complaint without raising special defenses and thereby avoid any default. Thereafter, one could amend his answer to include any such special defenses had the application been denied. However, as stated above, the special defenses raised in this case do not arise out of the legal duties and obligations which existed between Dime First Savings Bank and the defendants as a result of the note and mortgage. Therefore, they do not intrude upon the sanctity of those documents directly. As a result, the defendants do not get the unfair advantage of being afforded protection under a document which they also challenge.
Additionally, the special defenses were filed on January 17, 1992, after the motion for protection. Reading
Therefore, the application for protection should proceed in the normal course of events and plaintiff's objections are overruled. CT Page 5449