Deutsche Bank National Trust Company as Indenture Trustee v. Balt aka John Doe (2010)

MEMORANDUM OF DECISION

Oliver, J.

This is a summary process action for possession of the subject premises at 71 North Main Street, East Granby, CT. On September 21 and September 22, 2010, the parties appeared before this court for trial on the complaint.   The plaintiff's complaint alleges that the defendant's right or privilege to occupy the property terminated on March 10, 2009.   The defendant's answer disagrees with each count of the complaint.   The defendant's special defenses assert that the defendant is the successor in interest to a qualifying lease pursuant to the federal Protection of Tenants following Foreclosure Act. The defendant asserts that since the lease in question, a lease with a ninety-nine-year term with a yearly rental payment of ten dollars, has not expired, the plaintiffs are bound by the terms of the lease.   The defendant further asserts that the plaintiffs' title is void as a matter of law as it was the result of a foreclosure sale held during the pendency of an automatic stay by order of the U.S. Bankruptcy Court.   This claim has been addressed in the court's memorandum of decision on the defendant's motion to dismiss.   This claim was also raised in the defendant's motion to strike and has been raised at other times throughout this matter.

The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.

On July 29, 2009 the plaintiff caused a 90-day notice to vacate to be served on all occupants at the property, including the defendant.   The notice to vacate ordered the defendant to vacate the property within 90 days of the notice, dated July 26, 2009.   On September 15, 2009 the plaintiff caused a notice to quit possession of the property to be served on all occupants of the property, including the defendant.   The notice to quit ordered the defendant and all other occupants of the property to vacate the premises on or before October 26, 2009.   October 26, 2009 has passed.   The defendant remains in possession of the subject premises.

The plaintiff is the owner of the subject premises by virtue of a purchase after a judgment of foreclosure by sale.  (Plaintiff's exhibits, 1, 2, 4.) The deed was approved by the foreclosure court on March 10, 2009 and recorded on April 28, 2009.  (Plaintiff's exhibits, 1, 2, 4.) The plaintiffs acquisition of this property was not in violation of a bankruptcy stay.  (Plaintiff's exhibits 1, 2, 4;  Defendant's exhibit D.)

The defendant originally had the right to occupy the subject premises.   This right or privilege was conferred upon him by the previous owner, Greg Dunnett.   The defendant took possession of the property with the knowledge of Greg Dunnett and Alpha Omega painting company.  (Defendant's exhibit C;  Plaintiff's exhibits 5, 6.)

The defendant's right or privilege to occupy the property terminated when title vested in the plaintiff.  Tappin v. Homecomings financial network, 265 Conn. 741, 759 (2003).   The lease and purchase option agreement (Plaintiff's exhibit 5), the sublease and guarantee (Plaintiff's exhibit 6) and the sublease and assignment of rights (Defendant's exhibit 3) were all entered into for after the Plaintiff took absolute title to the subject property.   The defendant's right or privilege to occupy the premises terminated once the foreclosure sale committee deed was approved by the court on March 10, 2009.

The court finds that the plaintiff has proven all the necessary elements of the sole count of the complaint by a fair preponderance of the evidence.

As to the defendants first special defense, claiming that his right to occupy the property is subject to the federal protection, the court thinks the following findings.   First, the aforementioned Federal act applies to foreclosures after May 20, 2009.   In the instant matter, the underlying foreclosure was concluded before the effective date of this act.   The clear and unambiguous language of the Act indicate that its protections are prospective and therefore, are inapplicable to the instant action.   The defendant has failed to prove his first special defense by a fair preponderance of the evidence.

The defendant has failed to prove his second special defense, the plaintiff's title in the subject property is void, for the reasons specified in the court's memorandum of decision on the defendant's motion to dismiss dated December 29, 2010.

Accordingly, the court enters judgment for possession of the subject premises in favor of the plaintiff with a final stay of execution through January 10, 2011.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J., J.