Deutsche Bank National Trust Company as Indenture Trustee v. Tyrus R. Williams et al. (2011)

RULING ON MOTION FOR STAY OF EXECUTION (# 149)

The defendants, Tyrus R. Williams and Brenda Thomas–Williams, move for a stay of execution and ejectment to June 28, 2011.   This matter came before the court and was heard on March 14, 2011.   The court also considered a memorandum of law filed by the defendants on March 21, 2011.   The motion is denied.

FACTS

The defendants are residing at 34 Cottage Grove Road, Goshen, Connecticut, in a property that became the subject of a foreclosure action filed on February 24, 2009, more than two years ago.   The court file reflects numerous efforts to pursue foreclosure mediation over the course of the following year, with the mediation period terminating on February 5, 2010.   A final judgment of strict foreclosure entered on June 28, 2010.   At that time, the fair market value of the mortgaged property was found to be $198,000;  the total debt was more than twice that figure at $429,908.78.

The plaintiff represents that the defendants last made an installment payment on the mortgage in August 2005, and have thus lived “rent free” for more than five years.   In addition, the plaintiff represents that it has been paying municipal taxes and hazard insurance premiums relative to the property.   The defendants seek a stay of execution and ejectment on the grounds that:  1) their minor children attend school in Goshen and wish to finish the school year at the school they currently attend;  and 2) defendant Brenda Thomas–Williams has congestive heart failure, an implanted defibrillator, and her health condition prevents her from being able to move “during the harsh weather conditions.”

DISCUSSSION

The court agrees with the defendants that it has the equitable authority to grant a stay if the circumstances are appropriate.   The question of whether the circumstances are appropriate turns upon a balancing of the hardships between the parties.   Washington Mutual Bank v. Turner, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0263975 (July 19, 1999, Beach, J.) (25 Conn. L. Rptr. 126).

In Washington, the motion for stay was filed some six months after title vested with the plaintiff bank.   The motion was based on the fact that one of the defendants had had a heart attack and also on the fact that a commercial agency took money from the defendants, purportedly for the purpose of addressing the foreclosure proceeding, but absconded with the money.   However, even under all of the foregoing circumstances, the court only granted a stay for approximately six weeks and only on the condition that the defendants pay the previously effective mortgage payment.

Here, the defendants have known for years that foreclosure and ejectment were likely.   Certainly the defendants knew as long ago as June 28, 2010, that ejectment was a likely next step, yet they did not relocate within the town of Goshen or elsewhere.

At oral argument, defendant Tyrus Williams acknowledged that, even if he left the town of Goshen at this point in the school year, it is unlikely that the school will require that his children leave the Goshen school.   He stated that he simply wishes to avoid the disruption that would accompany a move from the house during the school year.   Although avoiding such a disruption is always desirable, the defendant could have avoided that disruption by moving from the house during the summer of 2010 after the entry of the judgment of foreclosure.   Further, any disruption caused by moving during the school year is not a significant hardship.   It is, for example, something that occurs frequently in families that have to move in order to accept new employment opportunities.

The alternative argument offered by the defendant is equally unavailing.   Although the court is sympathetic to the medical issue affecting defendant Brenda Thomas–Williams, the argument that she would be adversely affected by moving during “harsh weather conditions” no longer carries meaningful weight, now that harsh weather conditions have largely abated.

The plaintiff, on the other hand, has been extraordinarily generous in its offers to the defendants, and it has paid a significant price for its generosity.   It owns an asset that is occupied but which generates no income.   It has had to pay taxes and insurance premiums on the foreclosed property, yet that property is occupied by people whose right to possession has long since terminated.   The balance of hardships clearly favors the plaintiff.

For the foregoing reasons, the motion for stay of execution is denied.

BY THE COURT,

John A. Danaher III

Danaher, John A., J.