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TORO CREDIT COMPANY v. BETTY ANNE
ZEYTOONJIAN, TRUSTEE, ET AL.
(SC 20534)
McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on commercial property owned
by the defendants that was comprised of parcel A and parcel B, and
secured by a promissory note. A remedies provision in the mortgage
agreement between the parties permitted the plaintiff to seek foreclosure
by sale of both parcels. After the defendants defaulted on the promissory
note, the plaintiff commenced the present action and requested that the
trial court render judgment of foreclosure by sale of both parcels. After
a trial, the court concluded that foreclosure by sale, rather than strict
foreclosure, was the most appropriate remedy. The court determined
that it was not bound by the remedies provision in the mortgage agree-
ment but considered it as one factor in its balancing of the equities. In
addition, the court, in balancing the equities, considered, inter alia, that
the plaintiff successfully bargained for the right to select the remedy
of foreclosure by sale and that it is generally an abuse of discretion not
to order a foreclosure by sale when, as in the present case, the fair
market value of the property substantially exceeds the amount of the
debt. The trial court ordered the sale of both parcels, either together
or separately depending on the defendants’ preference, to protect the
plaintiff’s interest in its security and to ensure that any value realized
in excess of the amount owed would redound to the defendants’ benefit.
The defendants appealed from the trial court’s order of foreclosure by
sale, claiming that the court should not have considered the remedies
provision in the mortgage agreement and that foreclosure by sale of
both parcels was inequitable when strict foreclosure as to parcel A
would have fully satisfied the defendants’ debt. Held:
1. The trial court having determined the method of foreclosure and the
amount of debt, the defendants appealed from a final judgment, and
the fact that the trial court’s decision contemplated further orders regard-
ing the details of the foreclosure sale did not affect the finality of the
judgment for purposes of appellate jurisdiction.
2. The trial court did not abuse its discretion in ordering a foreclosure by
sale of both parcels: although strict foreclosure might have technically
satisfied the debt owed by the defendants if the plaintiff had taken title
to parcel A, it would have left the plaintiff in a position that it specifically
had not bargained for, namely, holding title to real estate; moreover, it
was not clear that strict foreclosure would have made the plaintiff whole
in the way it envisioned when it acquired the mortgage, because strict
foreclosure might have been ordered only as to parcel A, as the appraised
value of that parcel was slightly greater than the amount of the defen-
dants’ debt, the plaintiff thereby would have been required to release
its interest in parcel B, and, if the plaintiff had been unsuccessful in
selling parcel A at its appraised value, it would have lost the ability to
satisfy any deficit by selling parcel B; furthermore, the trial court did
not abuse its discretion in considering the remedies provision in the
mortgage agreement as one factor in its consideration, as there was no
principled reason why the court should have been barred from consider-
ing the contract language in the parties’ agreement when there was no
argument that the parties were not on equal footing in negotiating the
mortgage, the defendants’ concern about an unfair windfall to the plain-
tiff as a result of a forced sale of both parcels was unwarranted, as any
proceeds from such a sale that exceeded the amount of the foreclosure
judgment and costs of the sale would be returned to the defendants,
and strict foreclosure as to only one parcel would have defeated the
plaintiff’s purpose in encumbering the two parcels with one mortgage
to secure the defendants’ debt.
Argued February 25—officially released November 9, 2021*
Procedural History
Action to foreclose a mortgage on certain commercial
properties owned by the defendants, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Tolland and tried to the court, Sicilian, J.; order
of foreclosure by sale, from which the defendants
appealed; thereafter, Mark A. Zeytoonjian was substi-
tuted for the named defendant. Affirmed.
William S. Fish, Jr., with whom was Sara J. Stankus,
for the appellants (defendants).
Jeffrey R. Babbin, with whom were Matthew C.
Brown and, on the brief, Sean M. McAuliffe, for the
appellee (plaintiff).
Opinion
D’AURIA, J. In this appeal, we are asked to determine
whether the trial court abused its discretion when it
ordered a foreclosure by sale as to two parcels of land
owned by the defendants, Betty Anne Zeytoonjian, as
trustee of the Nubar Realty Trust, and Three Z Limited
Partnership,1 and secured by a blanket mortgage given
to the plaintiff, Toro Credit Company. The parties’ mort-
gage agreement contains a remedies provision that pro-
vides that, in the event the defendants default on the
mortgage, the plaintiff could seek a foreclosure by sale
as to both parcels. The trial court determined that the
remedies provision was not binding on it but, nonethe-
less, considered this contractual provision as one factor
in its balancing of the equities under General Statutes
§ 49-24.2 The defendants claim that the trial court
abused its discretion by ordering a foreclosure by sale
as to their two properties because (1) the court should
not have considered the remedies provision at all, and
(2) it was inequitable for the court to order a foreclosure
by sale as to both parcels when a strict foreclosure as
to one parcel would have fully satisfied the debt. We
conclude that the trial court did not abuse its discretion
when it granted the plaintiff’s request for a foreclosure
by sale under these circumstances. Accordingly, we
affirm the trial court’s order of foreclosure by sale.
The record reveals the following undisputed facts
and procedural history. The defendants operated Turf
Products, LLC, and acted as the plaintiff’s New England
distributor. In 2003, the parties restructured $14 million
of debt the defendants owed the plaintiff. As part of
the restructuring, the defendants granted the plaintiff
various mortgages on several properties to secure a
portion of the overall debt. The only mortgage at issue
in this case encumbered undeveloped land, comprised
of two adjacent parcels, each approximately 33 acres
in area, in Enfield. The parcels were identified in the
mortgage as parcel A and parcel B. This mortgage secured
a promissory note in the principal amount of $1,662,500.
The mortgage contains a remedies provision, which
states that, upon default, the defendants ‘‘[authorize]
and fully [empower]’’ the plaintiff to foreclose the mort-
gage ‘‘by judicial proceedings or by advertisement, or
render any power of sale . . . or by such other statutory
procedures available in the state in which the [p]remises
are located, at the option of [the plaintiff], with the full
authority to sell the [p]remises at public auction. . . .’’
The provision states that, out of the proceeds of the
sale, the plaintiff was entitled to ‘‘retain the principal,
repayment fee, if any, and interest due on the [n]ote
. . . .’’
The defendants subsequently defaulted on the prom-
issory note, and the plaintiff initiated this foreclosure
action. The defendants never have disputed that the
plaintiff is entitled to a judgment of foreclosure because
of their default. The parties disagree about the appro-
priate form of foreclosure. The trial court conducted a
trial to determine whether to order a strict foreclosure
or a foreclosure by sale and concluded that foreclosure
by sale was the most appropriate equitable remedy. The
court made the following factual findings in support of
this determination.
First, the trial court found that, as of April 5, 2019,
the total unpaid debt claimed by the plaintiff was
$902,447.12, which continued to accrue with per diem
interest. Each party had an appraiser value the two
parcels. Both appraisers valued parcel A at $950,000;
the plaintiff’s appraiser valued parcel B at $850,000,
whereas the defendants’ appraiser valued parcel B at
$840,000.
In balancing the equities, the trial court considered
that the plaintiff ‘‘successfully bargained for the right
to select its remedy’’ of foreclosure by sale, that the
plaintiff might not be made whole if there was only a
strict foreclosure of parcel A, that it is ‘‘generally . . .
an abuse of discretion to fail to order a sale’’ when the
fair market value of the property substantially exceeds
the debt, and that the other available foreclosure
options were inequitable as to one party over another.
The trial court ordered the parcels sold, either bundled
together or sequentially, at the defendants’ choice, to
protect ‘‘the plaintiff’s interest in its security while
ensuring that any value realized in excess of the amount
owed to the plaintiff would redound to the defendants’
benefit.’’
The trial court rejected an order of a strict foreclosure
as to both parcels, as the ‘‘fair market value of the
two parcels very substantially exceeds the outstanding
debt’’ and would yield an inequitable windfall to the
plaintiff. The trial court also rejected the defendants’
request that it order a strict foreclosure as to only parcel
A because that would ‘‘[rob] the plaintiff of a measure
of the security which it was granted,’’ namely, a mort-
gage on both properties. Additionally, the trial court
was concerned that strict foreclosure of parcel A would
‘‘leave the risk of a shortfall entirely’’ on the plaintiff
after taking title to the property and then selling it. Last,
the trial court rejected a ‘‘forced sale of the combined
parcels . . . .’’ The trial court reasoned that, while the
sale of both parcels would generate the most value, it
would eliminate the possibility that the defendants
could retain parcel B if the sale of parcel A satisfied
the debt.3
From the trial court’s order of foreclosure by sale,
the defendants appealed to the Appellate Court, and
the appeal was transferred to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
I
After oral argument before this court, we sua sponte
ordered the parties to file supplemental briefs addressing
whether the defendants had appealed from a final judg-
ment. See General Statutes § 52-263. Clearly, because
the trial court’s ruling did not end the case, it was not
a ‘‘final judgment’’ in that sense, and we have on many
occasions indicated that orders that are ‘‘a step along
the road to final judgment’’ are not appealable. (Internal
quotation marks omitted.) Abreu v. Leone, 291 Conn.
332, 339, 968 A.2d 385 (2009). Nevertheless, there are
areas of our law in which we have held that certain steps
along that road, although not literally final, inasmuch
as the case goes on, are considered final judgments
for purposes of appellate jurisdiction under § 51-199.
Foreclosure is one such area. Recently, we stated that
there are three appealable determinations in a case
involving a foreclosure by sale: ‘‘the judgment ordering
a foreclosure by sale, the approval of the sale by the
court and the supplemental judgment [in which pro-
ceeds from the sale are distributed].’’ (Internal quota-
tion marks omitted.) Saunders v. KDFBS, LLC, 335
Conn. 586, 592, 239 A.3d 1162 (2020). ‘‘The first determi-
nation is deemed final if the trial court has determined
the method of foreclosure and the amount of the debt.’’
Id., 593. Because the trial court in the present case
determined the method of foreclosure (foreclosure by
sale) and the amount of the debt ($902,447.12),4 we
conclude that the defendants appealed from a final judg-
ment. The fact that the trial court’s decision contem-
plated further orders regarding the details of the sale
does not affect the finality of the judgment under these
circumstances. See, e.g., Benvenuto v. Mahajan, 245
Conn. 495, 501, 715 A.2d 743 (1998) (judgment of strict
foreclosure is final for purposes of appeal, even though
recoverability or amount of attorney’s fees for litigation,
and, thus, total amount of debt, remained to be deter-
mined); Bank of New York Mellon v. Mazzeo, 195 Conn.
App. 357, 362 n.6, 225 A.3d 290 (2020) (‘‘[a] judgment
ordering a foreclosure by sale is a final judgment for
purposes of appeal even if the court has not set a date
for the sale’’); Willow Funding Co., L.P. v. Grencom
Associates, 63 Conn. App. 832, 836–38, 779 A.2d 174
(2001) (same); see also Moran v. Morneau, 129 Conn.
App. 349, 357, 19 A.3d 268 (2011) (postjudgment orders
contemplated by trial court’s decision were interlocu-
tory decisions), overruled in part on other grounds by
Saunders v. KDFBS, LLC, 335 Conn. 586, 239 A.3d
1162 (2020).
II
In support of their claim that the trial court abused
its discretion by ordering a foreclosure by sale as to
the two parcels,5 the defendants argue that (1) strict
foreclosure is the general rule in Connecticut, and strict
foreclosure of only parcel A would have satisfied the
debt, (2) foreclosure by sale exposes them to a loss in
value as to parcel B and a deficiency judgment if parcel
A sells for less than its appraised value, and (3) in
exercising its equitable discretion, the trial court should
not have considered the remedies provision of the mort-
gage. We are not persuaded and conclude that the trial
court did not abuse its discretion by ordering a foreclo-
sure by sale.
In foreclosure matters, this court reviews the trial
court’s exercise of its equitable powers for an abuse of
discretion. See, e.g., JPMorgan Chase Bank, National
Assn. v. Essaghof, 336 Conn. 633, 639, 249 A.3d 327
(2020). ‘‘In determining whether the trial court has
abused its discretion, we must make every reasonable
presumption in favor of the correctness of its action.’’
(Internal quotation marks omitted.) Deutsche Bank
National Trust Co. v. Angle, 284 Conn. 322, 326, 933
A.2d 1143 (2007). ‘‘Although we ordinarily are reluctant
to interfere with a trial court’s equitable discretion . . .
we will reverse [the court’s judgment] where we find
that a trial court acting as a court of equity could not
reasonably have concluded as it did . . . or to prevent
abuse or injustice.’’ (Internal quotation marks omitted.)
JPMorgan Chase Bank, National Assn. v. Essaghof,
supra, 640.
Specifically, ‘‘whether to order a strict foreclosure
or a foreclosure by sale is a matter committed to the
sound discretion of the trial court, to be exercised with
regard to all the facts and circumstances of the case.’’
New England Savings Bank v. Lopez, 227 Conn. 270,
284, 630 A.2d 1010 (1993). ‘‘A judgment of strict foreclo-
sure, when it becomes absolute and all rights of redemp-
tion are cut off, constitutes an appropriation of the
mortgaged property to satisfy the mortgage debt.’’ Bugg
v. Guilford-Chester Water Co., 141 Conn. 179, 182, 104
A.2d 543 (1954). ‘‘[I]n a strict foreclosure, the vesting
of title operates to reduce the debt by the value of the
property.’’ National City Mortgage Co. v. Stoecker, 92
Conn. App. 787, 794, 888 A.2d 95, cert. denied, 277 Conn.
925, 895 A.2d 799 (2006). ‘‘The purpose of the judicial
sale in a foreclosure action is to convert the property
into money and, following the sale, a determination of
the rights of the parties in the funds is made, and the
money received from the sale takes the place of the
property.’’ (Internal quotation marks omitted.) Saun-
ders v. KDFBS, LLC, supra, 335 Conn. 594.
This dispute arises out of the defendants’ default of
a debt restructuring that derived to them by virtue of
their long-term business relationship with the plaintiff.
Both the plaintiff and the defendants are commercially
sophisticated and were represented by counsel at all
pertinent times. The plaintiff specifically bargained for,
and the defendants agreed to, a blanket mortgage on
both parcels and for the remedy of foreclosure by sale.
‘‘A contract must be construed to effectuate the intent
of the parties, which is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action.’’ (Internal quotation marks omitted.) Issler v.
Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). We
previously have explained that ‘‘[j]udicial deference to
freedom of contract is particularly appropriate’’ in cases
in which a private lender and borrower are ‘‘presumed
to have had equal access to the financial marketplace
when the mortgage was first negotiated.’’ Olean v. Treg-
lia, 190 Conn. 756, 768, 463 A.2d 242 (1983).
In considering the remedies provision of the contract
when balancing the equities, the trial court doubtlessly
was aware of the fact that not only had the plaintiff
bargained for the right to a foreclosure by sale but
that such a provision implicates other integral mortgage
provisions, including the interest rate, length of term,
and sources of collateral. The plaintiff might have made
concessions it would not have acquiesced to had it not
succeeded in obtaining this remedies provision. As a
result, although strict foreclosure might technically sat-
isfy the debt if the plaintiff took title to parcel A, it
would leave the plaintiff in the position it specifically
had bargained not to be in: holding title to real estate.
There might have been very good business reasons why
the plaintiff, a Minnesota based company, did not want
to become a Connecticut property owner, with all the
attendant responsibilities and consequences. The
record also casts doubt that strict foreclosure would
make the plaintiff whole in the way it envisioned when
accepting the mortgage. The trial court noted that, after
considering the time and costs associated with selling
parcel A, the plaintiff might not realize the full appraisal
value to satisfy the debt. Strict foreclosure of parcel A
would force the plaintiff to take the precise risk that
it tried to protect against by securing the property with
a blanket mortgage. As we will explain, if the trial court
orders strict foreclosure only as to parcel A because
the appraised value of that parcel satisfies the debt, the
plaintiff must release its interest in parcel B, and if the
plaintiff is later unsuccessful at selling parcel A at its
appraised value, the plaintiff will lose the ability to
foreclose as to parcel B. See New Milford Savings Bank
v. Jajer, 244 Conn. 251, 261 and n.14, 708 A.2d 1378
(1998) (suggesting that mortgagee might waive right to
foreclose on particular parcel when ‘‘mortgagee inten-
tionally elected not to foreclose on one of several par-
cels securing the mortgage’’). The trial court reasonably
considered that it would be inequitable to place the
parties in a position they did not contemplate when
entering into this agreement.
The defendants, however, argue that the trial court
abused its discretion by considering the remedies provi-
sion in the mortgage contract at all. This argument is
premised on the proposition that parties cannot con-
tract around § 49-24 because to do so would violate
public policy by depriving the trial court of its discretion
to determine an equitable remedy. Although this argu-
ment might have some teeth if the parties were disput-
ing whether the contract was binding, this public policy
concern does not arise in this particular case because
the parties made no such argument, and the trial court
explicitly held that the remedies provision was ‘‘not
determinative’’ but, instead, was only ‘‘a factor in the
court’s consideration.’’6 See footnote 6 of this opinion.
Like the trial court, we agree that ‘‘due consideration
of the parties’ bargained-for remedies provision is
appropriate in the balancing of [the] parties’ competing
interests,’’ as long as the overall agreement was not the
result of duress, misrepresentation, or mutual mis-
take—none of which the defendants argue in the pres-
ent case. See Mack Financial Corp. v. Crossley, 209
Conn. 163, 168, 550 A.2d 303 (1988) (‘‘Commercial con-
tracting parties have considerable freedom to deter-
mine the remedial rights that will ensue upon breach.
. . . Absent some cogent reason such as mistake or
unconscionability, there is no reason why a court
should not enforce the bargain that the parties have
made.’’ (Footnote omitted.)). Even if we were to assume
that public policy reasons prohibit parties from con-
tracting around § 49-24, an issue we have not decided;
see footnote 5 of this opinion; we see no principled
reason why the trial court should be barred from consid-
ering the contract language in the present case when
there is no argument that the parties were on unequal
footing in negotiating the mortgage. As a result, the trial
court’s consideration of the remedies provision was
not inequitable but, rather, constituted an appropriate
exercise of discretion.
In the present case, the plaintiff requested a foreclo-
sure by sale as to the two parcels covered by the blanket
mortgage, rather than a strict foreclosure.7 The trial
court granted the plaintiff this relief. If the plaintiff had
not requested and been granted a foreclosure by sale,
pursuant to § 49-24, the plaintiff would have been enti-
tled to strict foreclosure as to both parcels. Given that
the debt is roughly $900,000, and the appraised value
of parcel A is $950,000 and parcel B between $840,000
and $850,000, if the trial court had ordered strict foreclo-
sure as to both parcels, based on the parties’ appraisals,
the plaintiff would be given ‘‘a substantial and unde-
served windfall’’ of nearly $900,000. Amresco New
England II, L.P. v. Colossale, 63 Conn. App. 49, 55, 774
A.2d 1083 (2001). ‘‘Since a mortgage foreclosure is an
equitable proceeding, either a forfeiture or a windfall
should be avoided if possible.’’ Farmers & Mechanics
Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d
1054 (1990).
Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d
1027 (1988), is instructive. In Fidelity Trust Co., this
court held that the trial court abused its discretion in
ordering a strict foreclosure when the mortgagee would
have received a property that had a value in excess of
the debt by more than $17,000. Id., 487–88.
By contrast, the defendants’ concern about an unfair
windfall to the plaintiff as a result of a forced sale
of both parcels is simply not warranted. Instead, any
additional proceeds of the sale of both parcels above
the total amount of the judgment and costs of sale would
be returned to the defendants; see General Statutes
§ 49-27;8 and further eliminates the defendants’ concern
about a potential deficiency judgment.
Moreover, an order of strict foreclosure as to only
parcel A would have extinguished the plaintiff’s interest
in parcel B, security the plaintiff had bargained for to
ensure recovery of the defendants’ debt. See General
Statutes § 49-1 (‘‘[t]he foreclosure of a mortgage is a
bar to any further action upon the mortgage debt, note
or obligation’’). This court has previously explained
that, ‘‘once a mortgagee strictly forecloses on a mort-
gage and obtains title to the property following the
running of the law days, § 49-1 extinguishes all rights
of the mortgagee with respect to the ‘mortgage debt,
note or obligation’ . . . except as provided in [General
Statutes] § 49-14.’’ JP Morgan Chase Bank, N.A. v. Win-
throp Properties, LLC, 312 Conn. 662, 671, 94 A.3d 622
(2014). Strict foreclosure of only one parcel defeats the
plaintiff’s purpose in encumbering the two parcels with
a blanket mortgage to secure the debt. See 2 D. Caron &
G. Milne, Connecticut Foreclosures (11th Ed. 2021)
§ 19-1:2, p. 17 (‘‘[s]ince the main purpose behind a lend-
er’s insistence on a blanket mortgage is to maximize
its security, it is not at all surprising to find that most
blanket mortgages are amply secured and that a foreclo-
sure by sale is ordered’’). We therefore conclude that the
trial court did not abuse its wide discretion in arriving
at an equitable result.
We agree with the trial court that there is no merit
in the defendants’ claim that they were entitled to a
strict foreclosure as to a single parcel of land as a
matter of law because strict foreclosure is the rule in
Connecticut and foreclosure by sale the exception. The
proposition is contained in a single conclusory sentence
in National City Mortgage Co. v. Stoecker, supra, 92
Conn. App. 793, unaccompanied by any citation to legal
authority or analysis to support such a sweeping state-
ment. Indeed, § 49-24 contains no language indicating
that foreclosure by sale should be used only in extreme
cases, or rarely, or never; rather, it plainly provides
for the option of a ‘‘decree of sale instead of a strict
foreclosure at the discretion of the court . . . .’’ Gen-
eral Statutes § 49-24 (1). In fact, foreclosure by sale
is the preferred ‘‘decree’’ in situations in which the
property’s fair market value exceeds the debt, as in
the present case. See, e.g., US Bank National Assn. v.
Christophersen, 179 Conn. App. 378, 394, 180 A.3d 611
(‘‘when the value of the property substantially exceeds
the value of the lien being foreclosed, the trial court
abuses its discretion when it refuses to order a foreclo-
sure by sale’’ (internal quotation marks omitted)), cert.
denied, 328 Conn. 928, 182 A.3d 1192 (2018); Voluntown
v. Rytman, 27 Conn. App. 549, 555, 607 A.2d 896 (same),
cert. denied, 223 Conn. 913, 614 A.2d 831 (1992). It may
be that the majority of foreclosure judgments are by
strict foreclosure, but, if anything, that would indicate
only that the majority of foreclosures arise in situations
in which the value of the property is less than the
debt owed. That hardly makes strict foreclosure the
general rule.
The defendants also rely on Amresco New England
II, L.P. v. Colossale, supra, 63 Conn. App. 49, in support
of their argument that, when a limited strict foreclosure
on a blanket mortgage can satisfy a debt, the trial court
abuses its discretion by not opting for that remedy. We
find this comparison inapposite. Amresco New England
II, L.P., concerned a mortgagee’s request that a trial
court order strict foreclosure on a blanket mortgage
that covered several properties when the value of all
the properties greatly exceeded the debt. Id., 50. The
trial court rejected the plaintiff’s request and ordered
strict foreclosure as to only two properties the mortgage
covered, the value of which sufficed to cover the debt.
Id., 50–51. The court in Amresco New England II, L.P.,
explained that the order of a limited strict foreclosure
was ‘‘an entirely appropriate exercise of [the trial
court’s] equitable discretion’’; id., 56; to avoid granting
the plaintiff ‘‘a substantial and undeserved windfall
. . . .’’ Id., 55. The present case does not involve the
option of a partial strict foreclosure as to two of several
parcels that secured the loan versus a full strict foreclo-
sure as to more than two parcels, which occurred in
Amresco New England II, L.P. The question here,
instead, is whether the trial court abused its discretion
when it ordered a foreclosure by sale, as requested by
the plaintiff, instead of a partial strict foreclosure, as
requested by the defendants. The exercise of equitable
discretion in one way in Amresco New England II, L.P.,
does not mean it is inequitable to exercise discretion
in another way in this case, especially given the different
interests at stake when deciding to order a foreclosure
by sale versus a strict foreclosure.
Finally, if the defendants are unsatisfied with the
outcome of the sale—either because of the ultimate
sale price or because of the way the sale was con-
ducted—they can contest the confirmation of the sale
before the trial court. See New England Savings Bank
v. Lopez, supra, 227 Conn. 277–82; see id., 280 (stating
that ‘‘usual notion of fair market value is inconsistent
with the notion of a foreclosure sale’’ in part because
seller is ‘‘required to take the highest bid, subject only
to the approval of the court’’); see also Central Bank
for Savings v. Heggelund, 23 Conn. App. 266, 270, 579
A.2d 598 (‘‘[i]f the court wanted to protect [the defen-
dant] from a future deficiency liability, it had the equita-
ble power at the hearing on the bank’s motion for
approval of the sale to disapprove the sale and instead
to order a strict foreclosure’’), cert. granted, 217 Conn.
804, 584 A.2d 471 (1990) (appeal dismissed February
21, 1991).
Thus, we conclude that the trial court did not abuse
its discretion by ordering a foreclosure by sale.
The trial court’s order of foreclosure by sale is
affirmed.
In this opinion the other justices concurred.
* November 9, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Mark A. Zeytoonjian was substituted for the named defendant in this
appeal on February 24, 2021.
2
General Statutes § 49-24 provides in relevant part: ‘‘All liens and mort-
gages affecting real property may, on the written motion of any party to
any suit relating thereto, be foreclosed (1) by a decree of sale instead of a
strict foreclosure at the discretion of the court before which the foreclosure
proceedings are pending, or (2) with respect to mortgages, as defined in
section 49-24a, that are a first mortgage against the property, by a judgment
of foreclosure by market sale upon the written motion of the mortgagee,
as defined in section 49-24a, and with consent of the mortgagor . . . .’’
3
It does not appear from the record that either party argued that the two
parcels of land securing one promissory note were a unified security interest
that could not be separated in a foreclosure action. See Voluntown v. Ryt-
man, 21 Conn. App. 275, 280–81, 573 A.2d 336 (trial court did not abuse its
discretion in denying request to sell only one of two parcels), cert. denied,
215 Conn. 818, 576 A.2d 548 (1990). Rather, both parties proceeded under
the premise that the parcels could be considered as two separate security
interests. Likewise, the plaintiff has not cross appealed, claiming to be
aggrieved by the trial court’s order rejecting a forced sale of both parcels
and, instead, permitting the defendants to choose whether to have the sale
conducted sequentially and which parcel to sell first, potentially permitting
the defendants to retain the second parcel. Therefore, we have no occasion
to consider whether the trial court had discretion to make such an order
or to treat the parcels as two separate security interests.
4
Subsequent to this court’s order for supplemental briefing on the issue
of whether the trial court made a finding as to the defendants’ debt as of
the date of its decision, the parties agreed that, notwithstanding that the
trial court’s memorandum of decision recites only that the ‘‘total amount
claimed to be owed as of April 5, 2019, is $902,447.12’’; (emphasis added);
the court in fact determined that the amount of the debt had been established
because (1) the parties do not dispute the amount of the debt, and (2) such
a determination is implicit in the court’s decision to order a foreclosure by
sale because, otherwise, the trial court may have ordered a different method
of foreclosure. We agree with the parties.
5
The record is not clear as to whether the plaintiff requested that the
trial court determine the proper remedy under § 49-24 or sought to exercise
its contractual right to require foreclosure by sale. Regardless, neither before
this court nor the trial court did the plaintiff argue that the contract was
binding and, thus, that § 49-24 did not apply and that the trial court lacked
discretion in crafting the remedy. Both parties—at trial and on appeal—
along with the trial court, proceeded under the assumption that § 49-24
governed this dispute. The trial court also held that, in exercising its discre-
tion under § 49-24, it did not consider the contract language to be determina-
tive. To the extent the contract might bind the parties to the remedy of
foreclosure by sale, we deem this argument abandoned. Additionally,
because we do not address this issue, we also will not address whether, if
binding, the remedies provision would violate public policy by taking discre-
tion away from the trial court, an issue not adequately addressed by the
briefing in this appeal.
6
Additionally, the defendants argue that the remedies provision is boil-
erplate, not specific to Connecticut, and provides remedies not available in
Connecticut, and, thus, the trial court erred in considering the remedies
provision. These arguments are unavailing, however, because the plaintiff
did not seek to strictly enforce the remedies provision and the trial court
did not consider it binding. Instead, the court considered it as only one
factor in the balancing of the equities.
7
We also reject the defendants’ argument that the plaintiff did not move
for a foreclosure by sale, therefore divesting the trial court of the ability to
grant such a remedy. The clear language of § 49-24 does not require a party
to request a particular foreclosure remedy. We cannot say that the trial
court abused its discretion in determining that this argument ‘‘exalts form
over substance.’’
8
General Statutes § 49-27 provides in relevant part: ‘‘The proceeds of each
such sale shall be brought into court, there to be applied if the sale is
ratified, in accordance with the provisions of a supplemental judgment then
to be rendered in the cause, specifying the parties who are entitled to the
same and the amount to which each is entitled. If any part of the debt or
obligation secured by the mortgage or lien foreclosed or by any subsequent
mortgage or lien was not payable at the date of the judgment of foreclosure,
it shall nevertheless be paid as far as may be out of the proceeds of the
sale as if due and payable . . . [and] if the plaintiff is the purchaser at any
such sale, he shall be required to bring into court only so much of the
proceeds as exceed the amount due upon his judgment debt, interest and
costs. . . .’’
There are no additional subsequent encumbrancers in this action, so
excess proceeds would go to the defendants.