DUPONT, C. J.
The principal issue to be decided in this mortgage foreclosure action is whether a prejudgment attachment may be obtained, as additional security, to secure recovery of an anticipated deficiency judgment when there is an expectation that the property securing the debt may not be sufficient to satisfy the debt. We conclude that such an attachment may be obtained upon the requisite determination of probable cause.
The salient facts are not in dispute. On September 14, 1989, the defendant Bilmor Building Corporation (Bilmor), through its president, the defendant Eamon F. Moran, executed a promissory note in favor of the plaintiff, People's Bank (bank),
The plaintiff instituted the present action on July 17, 1991, seeking inter alia, foreclosure of the mortgage, a deficiency judgment against the defendants, and money damages. In conjunction with this action, the plaintiff, through its attorney, issued a $705,000 ex parte prejudgment attachment against Bilmor's interest in two properties located in the town of Windsor. The complaint alleged that a lis pendens relating to
Bilmor and Moran subsequently, on August 21, 1991, moved to dissolve the prejudgment attachment.
After the defendants moved to dissolve the ex parte attachment, the plaintiff, on September 10, 1991, filed an application for a prejudgment remedy that was based not on General Statutes § 52-278f, but on § 52-278d. A scheduled hearing on the application was held on October 7, 1991, and the application was denied by the same court on October 25, 1991. Pursuant to the plaintiff's motion for articulation, the trial court issued a memorandum of decision as to the denial of the application on January 14, 1992.
On December 2, 1991, the trial court, Freed, J., rendered a judgment of strict foreclosure against the mortgaged property. Both defendants had previously been defaulted for failure to disclose a defense. The court found the total amount of the debt, including appropriate fees, to be $705,890.03 and the value of the property to be $605,000. The law days passed without redemption and title to the Bloomfield property vested in the plaintiff. After the judgment of strict foreclosure
The trial court, Aronson, J., dissolved the ex parte attachment and denied the application for an attachment because it concluded, as a matter of law, that a mortgagee may not "obtain additional security for a mortgage debt based solely on an expectation that the property securing the debt may be inadequate" and that, until a deficiency judgment is rendered, there can be no probable cause to support a plaintiff's application for a prejudgment remedy or the plaintiff's ex parte real estate attachment. At the hearing on the defendants' motion to dissolve the attachment, there were representations by the attorneys for the parties as to the amount of the debt and the value of the property as of that date. At the hearing on the plaintiff's application for a prejudgment remedy, the plaintiff offered to present testimony of a bank official that the debt exceeded $690,000 and the testimony of a real estate appraiser that the fair market value of the property was $610,000. The plaintiff also relied on the affidavit filed with the § 52-278f attachment to establish probable cause. The defendants conceded that the plaintiff's figures were accurate. The court, however, allowed no evidence because of its view of the law.
The bank appealed from the dissolution of the attachment and from the denial of its application for a prejudgment remedy and filed a motion to stay the dissolution of the attachment pursuant to General Statutes § 52-278l (c). The trial court granted the plaintiff's motion to stay the dissolution of the prejudgment attachment.
The resolution of the appeal from the granting of the defendants' motion to dissolve the attachment and the resolution of the appeal from the denial of the plaintiff's application to obtain an attachment require the same analysis. We, therefore, discuss them together unless otherwise noted.
The plaintiff claims that the prejudgment attachment should not have been dissolved because it was a legally allowable remedy in a mortgage foreclosure action that also sought a deficiency judgment and damages. The plaintiff further argues that it should have been allowed to present evidence relating to the merits of whether probable cause existed for the attachment. The plaintiff also claims that the court improperly denied its application for a prejudgment remedy.
The defendants assert that the "contingent" nature of a deficiency judgment, coupled with General Statutes
The defendants further assert that because the deficiency judgment had not yet "accrued" at the time of the prejudgment attachment, the attachment cannot be predicated on the anticipated deficiency but must, by implication, be grounded on the note evidencing the underlying debt or obligation.
In order to resolve the issue of whether a foreclosing mortgagee may, at the beginning of a foreclosure action, take advantage of the statutes relating to prejudgment remedies against property of a mortgagor that is unencumbered by the mortgage, in which action the mortgagee also seeks a deficiency judgment, we must first resolve whether the cause of action for a deficiency judgment existed at the time the suit was instituted.
At the time of the commencement of this foreclosure action, a cause of action for a deficiency judgment existed. This is so because the defendants had already defaulted in payment of the note, and that delict had already caused the harm to the plaintiff, namely, whatever the loss was that was occasioned by the deficiency between the fair market value of the property and the balance, plus interest, due on the note. The same group of facts here gave rise to different kinds of relief, namely, a foreclosure, payment on a note and a deficiency judgment. These different kinds of relief do not alter the fact that there was but one cause of action at the inception of suit; Vakalis v. Kagan, supra, 367-68; and that cause of action included a statutory right to a deficiency judgment pursuant to General Statutes § 49-14.
It is well established that a mortgagee has two separate and distinct causes of action against a defaulting mortgagor. A mortgagee may pursue an action at law for the amount due on the promissory note, or it may pursue its remedy in equity and foreclose on the
In this case, the plaintiff sought and obtained a judgment of foreclosure. As the amount due on the underlying debt exceeded the value of the property upon strict foreclosure, the plaintiff was entitled, within thirty days of the foreclosure, to seek a deficiency judgment in accordance with § 49-14. Even though the plaintiff was entitled to obtain a deficiency judgment in the foreclosure suit, it would be able to recover the amount of the deficiency judgment only if the defendants had other assets left to satisfy that judgment. The plaintiff, by its prejudgment attachment, attempted to secure a position superior to that of other attaching
The first sentence of General Statutes § 52-279 authorizes the granting of attachments "upon all complaints containing a money demand against the estate of the defendant, both real and personal." The statute then details specific instances when such attachments are not permitted. None of the enumerated exceptions proscribes the use of attachments in foreclosure actions. It is a well established maxim of statutory construction that when a statute enumerates exceptions to a stated general proposition, anything not excepted is conclusively included. State v. Kish, 186 Conn. 757, 443 A.2d 1274 (1982).
There is also no exception for foreclosure actions in the general prejudgment remedy statute. General Statutes §§ 52-278a through 52-278h. General Statutes § 52-278b provides for prejudgment remedies in "any action at law or equity." Thus, neither the attachment statute nor the prejudgment remedy statute specifically prohibits the granting of a prejudgment attachment in a foreclosure action.
Similarly, there is nothing in those statutes that specifically prohibits the granting of a prejudgment attachment to secure the payment of a deficiency judgment. If the legislature intended to prevent the use of prejudgment attachments to secure the payment of deficiency judgments in foreclosure cases, then presumably it would have done so. It has not.
The note signed by the defendants clearly anticipated that a prejudgment remedy might be sought on property other than the mortgaged property in order to secure the debt. The defendants waived the right to prior notice of and hearing on any prejudgment remedy
We are unpersuaded by the defendants' bedrock assertion that the possibility or probability of a deficiency judgment cannot form the basis for a prejudgment remedy because it cannot be known until the completion of the foreclosure action whether there will be such a judgment and, if there is, its amount. While it is true that a deficiency judgment is "contingent" in that it cannot automatically be granted by a court without credible evidence as to an appropriate amount; Eichman v. J & J Building Co., 216 Conn. 443, 449, 582 A.2d 182 (1990); other prejudgment remedies that are based on various causes of action that can lead to judgments are no less contingent. Prejudgment remedies are available in dissolution actions; Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 355 A.2d 286 (1974); in an action claiming a real estate commission; New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098 (1990); in an action claiming a cobroker commission; Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 525 A.2d 935 (1987); in an action claiming damages for willfully and maliciously causing personal injury; Goodwin v. Pratt, 10 Conn.App. 618, 524 A.2d 1168 (1987); in an action for negligence stemming from a car accident; Anderson v. Nedovich, 19 Conn.App. 85, 561 A.2d 948 (1989); in an action for libel; Haxhi v. Moss, 25 Conn.App. 16, 591 A.2d 1275 (1991); in an action for a percentage of anticipated profits of a partnership; Glanz v. Testa, 200 Conn. 406, 511 A.2d 341 (1986); in an action seeking a judgment requiring the defendant to set up a trust; England v. England, 184 Conn. 85, 440 A.2d 790 (1981); in an action seeking modification of a contract; Three S Development Co. v. Santore, 193 Conn. 174, 474 A.2d 795
The likelihood of a deficiency judgment and the probable amount of such a judgment are much easier to ascertain in this case than in many other cases where prejudgment relief is routinely granted. Furthermore, the time between the institution of a foreclosure action and a deficiency judgment is usually much shorter than the time between the commencement of suit and judgment in other types of actions. Even if an appraisal conducted at the commencement of the foreclosure proceeding does not conclusively establish the anticipated value of the property at the time of foreclosure, such an appraisal would generally be accurate enough for the court to determine the propriety of issuing such relief under the probable cause standard of § 52-278e. Attachment statutes are premised on an ultimate factual contingency, namely, that the defendant may not be able to satisfy the eventual award of damages to the plaintiff. Connecticut v. Doehr, U.S. , 111 S.Ct. 2105, 115 L. Ed.2d 1 (1991). Disputes between debtors and creditors more readily lend themselves to accurate ex parte assessment of the merits of a dispute. Id., 2115. "Regarding damages, if there is an uncontradicted statement in an affidavit that the affiant believes that it is probable that a stated sum may be recovered upon a trial and such belief is founded on reasonable subordinate facts, this will ordinarily be sufficient to support probable cause for an attachment."
The defendants also argue that the note is serving as the basis of the attachment, which is prohibited by General Statutes §§ 49-1 and 49-28. The purpose of § 49-1
Similarly, the defendants assert that "[a] clear reading of [General Statutes § 49-28
The mortgagee here simply attempted to avail itself of a commonly used procedural device in order to improve its chances to receive full recovery of a debt owed to it. The mortgagee could have sued on its promissory note, independent of a foreclosure action, and obtained a prejudgment remedy. It should not be penalized by combining an action for foreclosure with one for payment of the note. A mortgagee should not be placed at the end of the creditors' line for exercising
Finally, allowing a mortgagee to secure prejudgment relief will not allow the mortgagee to run roughshod over the rights of the debtor, for, consistent with the granting of any prejudgment remedy, the mortgagee will be granted such relief only upon a showing of probable cause. See General Statutes §§ 52-278e, 52-278f. Even in a case such as this, where the plaintiff obtained an ex parte attachment pursuant to an express waiver by the defendants, as allowed by § 52-278f, mortgagors can still do as the defendants did, and move to dissolve the attachment. Furthermore, in accordance with § 52-278f, the plaintiff had to provide an affidavit sufficient to show probable cause.
We conclude that the ex parte attachment issued by the plaintiff's attorney was valid and in compliance with General Statutes § 52-278f. We further conclude that the prejudgment application for an attachment should have been considered to determine whether there was probable cause to grant it. In assessing that probability, the court would have had to consider both the plaintiff's claim and the defendants' defenses; Haxhi v. Moss, supra; although in this case, the defendants were defaulted for failure to disclose a defense. We hold, as a matter of law, that a mortgagee may obtain additional security for a mortgage debt by means of a prejudgment remedy, if there is probable cause to believe a deficiency judgment will be rendered and a court can make an educated prediction as to the probable amount of the deficiency.
Ordinarily, we would remand this case to the trial court so that it could hold an evidentiary hearing to
The original ex parte attachment is currently in place due to the trial court's stay of its order to dissolve the attachment pending appeal. Because we hold that the ex parte attachment should not have been dissolved, we need not take any action on the court's denial of the plaintiff's application for an attachment.
The next question to be resolved is what was the effective date of the ex parte attachment. "Under General Statutes § 52-285, an attachment that is subsequently transformed into a judicial lien following a judgment in the underlying cause of action relates back, for purposes of determining priority, only to the moment when the certificate of attachment is left at the town clerk's office of the town where the property is located." Farmers & Mechanics Savings Bank v. Garafolo, 219 Conn. 810, 819, 595 A.2d 341 (1991). A judgment lien relates back to the date of an attachment. Atlas Garage & Custom Builders, Inc. v. Hurley, supra, 251. A prejudgment attachment relates back to the date of the attachment; Union Trust v. Heggelund, supra, 626; which in this case is the date it was issued and recorded, namely, July 25, 1991. The original attachment recorded on July 25, 1991, however, exceeded the amount of the deficiency judgment eventually obtained and must be reduced accordingly. See Eichman v. J & J Building Co., supra.
The judgment dissolving the attachment is set aside and the case is remanded to the trial court with direction to render judgment denying the defendants'
In this opinion the other judges concurred.