Connecticut Bank and Trust Company v. LLC (2013)

RULING RE MOTION FOR DEFICIENCY JUDGMENT

Pending before the court is a motion for deficiency judgment filed by the substitute plaintiff, Berkshire Bank, in connection with the above captioned foreclosure action.   For the following reasons, the motion is granted.   A deficiency judgment shall enter in favor of the substitute plaintiff and against the defendants, Munsill–Borden Mansion, LLC, Mei–Wa Cheng, Claude M. Brouillard, and Ravenwood Properties, LLC, jointly and severally, in the amount of $261,377.84.

I

This matter was heard by the court during proceedings on March 18, April 5, April 24 and May 1, 2013.   Witnesses who testified included plaintiff's expert, Jerome C. Franklin, appraiser;  Claude Brouillard, former property owner and defendant;  Rick Chozick, property manager;  and Attorney Mark Dean. The court also admitted into evidence the appraiser's report, numerous photographs and other documents and papers.

Based on the evidence and a review of the court file, the court finds the following facts pertinent to the issues:  This case is an action for foreclosure which commenced by service on the defendants on February 5 and 10, 2009.   The complaint alleged that the defendant, Munsill–Borden Mansion, LLC (Munsill–Borden), was liable on a note in the original principal sum of $400,000.00 payable to the original plaintiff, the Connecticut Bank and Trust Company.   The debt was secured by a mortgage on property owned by the defendant located at 2 Wethersfield Avenue, Hartford, CT. The co-defendants, Mei–Wa Cheng (Cheng), Claude M. Brouillard (Brouillard), and Ravenwood Properties, LLC (Ravenwood), were alleged to be liable as guarantors.   Cheng and Brouillard have ownership interests in and/or control Munsill–Borden and/or Ravenwood, and they are husband and wife.

A judgment of strict foreclosure entered on November 16, 2009, after the defendants were defaulted for failure to plead, and law days were set.   See Order on Doc. No. 108.00.   That judgment was opened on November 23, 2009.   See Order on Doc. No. 128.00.   On reconsideration, on February 17, 2010, the court vacated its decision to open the judgment.   See Order on Doc. No. 146.00.

The case was stayed when Munsill–Borden filed for bankruptcy.   See Notice dated March 15, 2010, Doc. No. 149.00.   Relief from the bankruptcy stay was granted by the U.S. Bankruptcy Court, and the plaintiff then filed a motion to open the judgment on August 22, 2011.   See Doc. No. 150.00.   That motion was granted and new law days were set on September 6, 2011.

Next, the case was stayed when Ravenwood filed for bankruptcy.   See Notice dated October 7, 2011, Doc. No. 152.00.   Relief from the bankruptcy stay was granted by the U.S. Bankruptcy Court, and the plaintiff then filed another motion to open the judgment on November 1, 2011.   See Doc. No. 155.00.   That motion was scheduled for hearing to be held on November 14, 2011.   Prior to the hearing, on November 10, 2011, Cheng filed a “caseflow request” asking for a continuance due to a scheduling conflict.   The motion and request were heard by the court on November 14, 2011.   The court denied the request for continuance and granted the motion to open judgment, setting the new first law day for December 19, 2011.

After the law days passed and title presumptively vested in the plaintiff on December 22, 2011, the plaintiff took possession of the property, changed the locks on the house on the property on December 29, 2011, and filed a certificate of foreclosure on the Hartford land records.   It also filed a motion for deficiency judgment on January 1, 2012.   See Doc. No. 159.00.

Unbeknownst to the judge or the parties, no notice of the November 14, 2011 judgment had been issued by the clerk's office.

After they became aware of these events, the defendants promptly filed an objection to the motion for deficiency judgment and, in their objection, requested the court to order the plaintiff to “immediately turn over all keys to the subject property.”   Doc. No. 160.00.   They also moved to open the judgment on the grounds of lack of notice of the judgment.   Doc. No. 163.00.   They protested that the lack of notice deprived them of their law days, and chance to appeal.   They asked the court to “open the judgment and reset the appeal period.”   See Motion, Doc. No. 163.00, point 10.

The trial court denied the plaintiff's motion for deficiency judgment, without prejudice, and scheduled the case for a hearing to be held on March 19, 2012, “for the purpose of setting a law date.”   Order, Doc. No. 159.86.   After hearing the parties, the court entered a new order on plaintiff's previously filed motion to open judgment and set the new first law day for April 23, 2012.   Order, Doc. No. 154.86.   It did not order return of keys or the property to the defendants.   The plaintiff offered to let the defendants retake possession at that point, but the offer was not accepted.   Defendants appealed on April 9, 2011, activating an automatic stay.   Doc. No. 167.00.   The court granted a motion by the plaintiff requesting a termination of the automatic stay.   Order on Doc. No. 165.00.   The Appellate Court denied defendants' motion to review that order on July 25, 2012.

Plaintiff filed a motion to reopen the judgment, substitute Berkshire Bank as the plaintiff, and set new law days on September 5, 2012.   The court granted that motion on September 18, 2012, and set October 22, 2012 as the new first law day.   See Order on Doc. No. 171.00.

After the law days passed and the defendants did not redeem, title vested in the plaintiff on October 25, 2012.   The plaintiff filed the pending motion for deficiency judgment on October 31, 2012.   Doc. No. 180.00.   On March 18, 2013, the defendants file a brief entitled “Opposition to Motion for Deficiency Judgment.” ¹  Doc. No. 185.00.   Additional factual findings necessary for resolving the issues are made below as needed.

II

The first issue is whether the motion for deficiency judgment is timely.   The time for filing of such a motion is prescribed by General Statutes § 49–14.   That statute provides, in pertinent part, as follows:

(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.

General Statutes § 49–14(a).

Defendants argue that the plaintiff's pending motion for deficiency judgment, filed on October 31, 2012, is too late because on November 14, 2011 the court granted a motion to open judgment and set the new first law day for December 19, 2011.   In accordance with that, the plaintiff recorded a certificate on the land records declaring that title became absolute in the Connecticut Bank and Trust Company on December 22, 2011.   Since the motion for deficiency judgment was filed over 10 months after that date, it was too late, according to defendants.

The argument is not persuasive.   The court subsequently opened that judgment, on September 18, 2012, and set October 22, 2012, as the new first law day.   In accordance with that new judgment, the plaintiff filed another certificate on the land records declaring that title became absolute in the Berkshire Bank on October 25, 2012.   The motion for deficiency judgment filed six days later was within the statutory deadline.

Alternatively, defendants argue that the new deadline cannot be used because “the trial court was without authority if not jurisdiction to open the judgment of strict foreclose” to set a new deadline after title presumptively vested on December 22, 2011.   Defendants' Brief, pp. 11–12.   The court is not persuaded.   First, failure to meet the deadline within which to file a motion for deficiency judgment is not a fatal, jurisdictional defect, according to the decision in Federal Deposit Insurance Corporation v. Hillcrest Associates, 233 Conn. 153, 172, 659 A.2d 138 (1995).   Nevertheless, in that case, it was cautioned that “it would be improper for the court to render such a judgment [on a motion for deficiency judgment filed late] unless the mortgagor had either expressly or by its conduct, consented thereto.”  Id., 173.   The defendants in the instant case, however consented by their conduct.   After the court entered judgment in 2011, the defendants objected and they requested the court to open the judgment on the grounds that they had not been given notice of the court's decision.   The court agreed to open the judgment on March 19, 2012.   They cannot now complain that the court did what they requested.   By their conduct, they consented to an extension of the statutory deadline within which to file a motion for deficiency judgment.

Defendants further argue that the court could not open judgment on March 19, 2012, to reset the deadlines, because that was more than four months after the November 14, 2011 judgment, and after title vested, citing General Statutes § 49–15.   However, as noted above, defendants requested the court to open that judgment.   They cannot complain that the court did what they requested.   If there was an error, they waived it.  Ferguson v. Sabo, 115 Conn. 619, 623, 162 A. 844 (1932), cert. denied, 289 U.S. 734 (1933).   Moreover, the opening was not improper.   Ordinarily, a motion to open judgment cannot be entertained more than four months after judgment or more than 30 days after title becomes absolute in the encumbrancer, whichever is later.  General Statutes § 49–15(a)(2).   However, there is an exception in cases of lack of notice.   Where the defendants have not received notice of the judgment, the four-month deadline to open the judgment is extended by the delay in notification.  “[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.”  (Citation omitted, internal quotation marks omitted.)  Habura v. Kochanowicz, 40 Conn.App. 590, 593, 672 A.2d 512 (1996).  “Once title has vested, no practical relief is available provided that this vesting has occurred pursuant to an authorized exercise of jurisdiction of the court.”  (Citation omitted, internal quotation marks omitted, emphasis in original.)  Highgate Condominium Association v. Miller, 129 Conn.App. 429, 435, 21 A.3d 853 (2011).   Defendants can, and did, use lack of notice to challenge the foreclosure judgment.   That defect was raised, addressed and cured.   They cannot now use that same defect to challenge the motion for deficiency judgment as too late.  “[Such] claims are not proper defenses to a motion for deficiency judgment, but rather might be defenses to the foreclosure action.”   See Citicorp Mortgage, Inc. v. D'Avanzo, 31 Conn.App. 621, 626, 626 A.2d 800, cert. denied, 227 Conn. 909, 632 A.2d 690 (1993), cert. denied, 510 U.S. 1195 (1994).

III

The next issue is whether a deficiency judgment is enforceable against the defendants as guarantors.

First, defendants argue that they cannot be liable as guarantors because the motion for deficiency judgment was untimely, citing JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC, 137 Conn.App. 680, 689, 50 A.3d 328, cert. granted, 307 Conn. 922, 54 A.3d 183 (2012).   The timeliness of the motion was resolved supra.   The motion was timely.   Defendants' argument on this point has already been resolved.

Defendants also argue that they cannot be liable as guarantors because, “Parties in interest are commonly named as defendants, however, the so-called ‘Guarantors' in separate counts are not pled as liable under the subject debt and, therefore, cannot be held liable for any deficiency.”   Defendants' Brief, p. 14.   The court agrees that if there was no claim against the defendants as guarantors, they would not be subject to a deficiency judgment.   Under General Statutes § 49–1, a judgment of strict foreclosure extinguishes personal liability on the underlying note, with the exception of rights enforceable against the parties in the action through the use of the deficiency judgment procedure under General Statutes § 49–14.   Cf. New Milford Savings Bank v. Jajer, 244 Conn. 251, 267, 708 A.2d 1378 (1998).   However, in the instant case, the complaint alleged that the defendants Cheng, Brouillard and Ravenwood were liable on the note as guarantors.   See Complaint, Counts Two, Three and Four. The defendants were defaulted for failure to plead.   See Order on Doc. No. 113.00.  “A default admits the material facts that constitute a cause of action ․ and entry of default, when appropriately made, conclusively determines the liability of a defendant.”  (Citation omitted;  internal quotation marks omitted.)  Argentinis v. Fortunig, 134 Conn.App. 538, 545–46, 39 A.3d 1207 (2012).   Judgment has entered against the defendants, repeatedly.   Moreover, if the defendants had any defenses as guarantors, those defenses should have been raised earlier:

We have observed that the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action ․ The defendant in the subsequent deficiency proceeding, however, cannot assert defenses properly addressed to the actual judgment of foreclosure.   Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing ․ This view is reinforced by the limited nature of the deficiency hearing.   Our Supreme Court has held that [i]n the hearing contemplated under [General Statutes] § 49–14 to obtain a deficiency judgment, the court, after hearing the party's appraisers, determines the value of the property and determines any deficiency.   This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.  (Citations omitted;  internal quotation marks omitted.)  Vignot v. Bank of Mystic, 32 Conn.App. 309, 313, 628 A.2d 1339 (1993).

Danzig v. PDPA, Inc., 125 Conn.App. 254, 259, 11 A.3d 153 (2010), cert. denied, 300 Conn. 920, 14 A.3d 1005, cert. denied, 131 S.Ct. 3077 (2011).

Thus, the defendants, Cheng, Brouillard and Ravenwood, as guarantors, are properly subject to liability in the motion for deficiency judgment.

Finally, defendants argue that they cannot be liable as guarantors in a deficiency judgment because “[t]he trial court further excludes the Guarantors from liability and the equity of redemption alike in assigning only three law days:  one for the Defendant Munsill–Borden Mansion LLC, and two additional defendants, Edward Kriedel and Matthew Kriedel.”   Defendants' Brief, p. 15–16.   They do not identify where in the record they ever objected to the proposed law days prior to judgment by filing a motion for order of priorities, as required by Practice Book § 23–17.   It is also unclear whether they are arguing for separate law days or the same as that assigned to Munsill–Borden.   Moreover, they offer no authority for the assertion that they should have been assigned law days.   The court observes that there is no appellate authority directly on point and there is a split of authority among the superior court judges as to whether a co-signor, obligor or guarantor should be assigned a law day.   See, generally, Pezzelo v. Knight Development, LLC, Superior Court, judicial district of New London, Doc. No. 4004428 (July 12, 2006, Devine, J.) [41 Conn. L. Rptr. 575];  2 D. Caron and G. Milne, Connecticut Foreclosures (5th Ed.2011) § 22–4.   Other than stating the claim, the defendants offer no legal analysis or legal authority supporting their position.   In such cases, the argument is deemed to be abandoned.   See Feliciano v. Autozone, Inc., 142 Conn.App. 756, 762, 66 A.3d 911 (2013).

IV

Next, defendants argue that the motion for deficiency judgment should be denied due to equitable considerations.   They argue that equity mitigates against awarding a deficiency judgment because (1) plaintiffs have been in possession and control of the subject property since December 2011, and (2) the trial court judge that opened the judgment in March 2012, erred in “repeatedly failing to timely state the effect of its own orders and prior judgment, and to order return of the subject property to the Defendants greatly prejudiced and deprived Defendants of due process.”   Defendants' Brief, p. 17.

A deficiency judgment proceeding is part of the main foreclosure action.   Danzig v. PDPA, Inc., supra, 125 Conn.App. 260.   A foreclosure action constitutes an equitable proceeding.   In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.  Id., 262–63.   However, any claims by the defendants that were made or could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing.  Id., 259.   Defendants' complaints about the prior court's judgment cannot be relitigated here.

To the extent that the defendants suggest that plaintiff's conduct in taking the property in 2011 constitutes inequitable conduct, the court is not persuaded.   Plaintiff took possession pursuant to a judgment announced in its presence in 2011.   Defendants did not hear that judgment because they were absent without permission.   Although defendants did not get written notice, either, there was no evidence that the plaintiff had any role in that failure.   As defendants point out, it has been stated that “[w]here the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.”   Defendants' Reply Brief, p. 19 citing Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).   However, the court finds no inequitable conduct on the part of the plaintiff in this case that would prevent their pursuit of their timely motion for deficiency judgment.   Nevertheless, the court can take the equities into consideration when calculating a deficiency judgment.  MTGLQ Investors, L.P. v. Egziabher, 134 Conn.App. 621, 624, 39 A.3d 796 (2012).   In the instant case, the court will consider the facts and circumstances and equities in calculating the amount of the deficiency infra.

V

Next, defendants argue that Connecticut's foreclosure and deficiency judgment scheme as applied violates Connecticut's Constitution.   They argue that it is unconstitutional because “these statutes fail to provide due process and equal protection of the law to distressed mortgagors [who] do not have access or the financial resources to hire an expert appraiser to engage in the ‘battle of appraisers' with their foreclosing mortgagee.”   Defendants' Brief, p. 17.   The constitution issues were never raised by the defendants during the hearings.   Accordingly, the court is not obligated to address those points.  Practice Book § 5–2.   Moreover, the court is not persuaded.

Defendants' argument is premised on the claim that the mortgagee in this case had money to hire appraisers to testify, favorably to their position, as experts on the issue of the value of the property, and the defendants did not.   However, the defendants, in fact, were permitted to put on evidence as to the value of the property.   Owners and former owners can testify as to the value of their property.   See, e.g. Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 46, 634 A.2d 870 (1993);  O'Connor v. Dory Corp., 174 Conn. 65, 70, 381 A.2d 559 (1977).   In the instant case, the defendant, Brouillard, qualified as the former owner by virtue of his ownership interest in Ravenwood, which was majority owner of Munsill–Borden, which was the title holder of the property.   He testified on the issues concerning the value of the property—for two days.

Also, defendants argue, “The recent passage of § 37 of Connecticut Public Act No. 09–209 (the “Act”), amending C.G.S § 49–15, only serves to further increase the constitutional infirmity of Connecticut's strict foreclosure and deficiency scheme by now placing in the hands of the foreclosing mortgagee a statutory veto on all equitable discretion a presiding judge may have to pen an unjust judgment and correct for such a windfall.”   Defendants' Brief, pp. 20–21.   The argument is unexplained, its relevancy is unclear, and it is, therefore, not persuasive.

Defendants have a difficult burden on this point.   State statutes are presumed to be constitutional.  “[A] party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt ․ While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case ․ Every presumption is to be given in favor of the constitutionality of the statute.”  (Citations omitted;  internal quotation marks omitted.)  Sanborn v. Greenwald, 39 Conn.App. 289, 299, 664 A.2d 803, cert. denied 235 Conn. 925, 666 A.2d 1186 (1995).   The proposed constitutional challenge does not appear to be viable.

VI

The remaining issues in the case relate to the weight of the evidence and whether the plaintiff has proven a deficiency.   In a deficiency judgment proceeding, the court is required to apply a calculation prescribed by statute to determine if plaintiff is eligible for a deficiency judgment.   Under the statute, the court is required to establish a value for the claim, a value for the mortgaged property, and render a judgment for the plaintiff for the difference, if any.  General Statutes § 49–14(a).   The burden is on the plaintiff to prove the property was worth less than the claim:

“[T]he plain object [of the deficiency judgment statute] is to require a mortgage creditor, who appropriates the property in part payment only of his debt, to apply the actual value of the security to the debt before collecting any claimed deficiency ․” People's Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233 (1934) quoting Staples v. Hendrick, 89 Conn. 100, 103, 93 A.5 (1915);  Maresca v. DeMatteo, 6 Conn.App. 691, 694, 506 A.2d 1096 (1986).   Implicit in the purpose of the statute is the initial prerequisite that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment.   Indeed, this court has held, in a deficiency judgment proceeding, that “the trier may not decide an issue which is wholly unsupported by the evidence.”  New Haven Savings Bank v. West Haven Sound Development, 190 Conn 60, 71–72, 459 A.2d 999 (1983).

Eichman v. J & J Bldg. Co., Inc., 216 Conn. 443, 450, 582 A.2d 182 (1990).

The plaintiff submitted evidence in support of its calculation of the claim, and on the issues concerning the value of the property.   The defendants submitted evidence in opposition, primarily on the issues concerning the value of the property.   The court, having considered all of the evidence, finds as follows:  The plaintiff's claim consists of the judgment debt as of the date of judgment of $402,979.66, plus attorneys fees awarded by the court as of the date of judgment of $4,000.00, plus appraiser's fees of $2,500.00, plus a title search fee of $225.00, plus interest from the date of judgment to the date of title vesting (1,074 days x 71.22 per diem) of $76,490.28, plus $627.80 in additional costs, plus statutory interest from the date title vested to the date of the deficiency judgment calculated on the deficiency (316 days x $34.247432 gross daily interest) of $10,822.19, plus additional attorneys fees of $29,010.50, plus taxes paid of $39,722.41, for a total of $566,377.84.

As to the value of the property at the date of title vesting, the parties were in dispute.   The court's task is to find the fair market value of the subject property as of the date title vested in the foreclosing plaintiff.  MTGLQ Investors, L.P. v. Egziabher, supra, 134 Conn.App. 623;  Citicorp Mortgage, Inc v. Weinstein, 52 Conn.App. 348, 352, 727 A.2d 720 (1999).   The court finds as follows:  The house is known as the Munsill–Borden Mansion and it, indeed, was a mansion in a high-society residential neighborhood in its heyday at the fin de siecle.   Those days are long gone.   It is now unoccupied, boarded up and it receives only minimal maintenance.   It is in the southeast part of Hartford on the southern outskirts of the Hartford central business district.   The area is heavily traveled and heavily developed with a mix of commercial and mixed use properties.   It is near the Hartford Hospital campus.   Most recently, the building was converted for use as a multi-tenant office building.   It was divided into multiple private use office areas which were rented out, from time to time, as, inter alia, law offices.   It has been on the market since November 2012, at $290,000.00.   There has been limited interest in the property.   The plaintiff's expert opined that the value, as of October 25, 2012, using the sales comparison approach, was 200,000.00.   Using the income approach, he valued it at $210,000.00.   Averaging the two, he attributed to the property a value of $205,000.00.

The defendants disputed those opinions, point by point, and argued that the property's value is much enhanced by its ornate details and high quality of workmanship and artistry in the fixtures throughout—high quality work now rarely seen in modern construction.   They chronicled various business plans they had considered for the property and other potential uses, including its use as a specialized library involving nearby Trinity College and a Chinese poet.   They gave a variety of estimates of its value as of October 25, 2012, averaging at $650,000.00.

“In assessing the value of ․ property ․ the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation.”  (Citations omitted;  internal quotation marks omitted.)   Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983).   The trier's agreement with any particular testimony depends on the correctness of certain factors the witnesses included in their calculations.   Those factors are not capable of proof by direct evidence, only by estimates or expressions of opinion.   See Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 230–34, 188 A. 433 (1936).  “When considering a motion for a deficiency judgment, the trial court may make an independent determination as to the valuation of the property ․ Our Supreme Court has held that, in a deficiency judgment proceeding, the determination of [a property's] value by a court is the expression of the court's opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it ․ The determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible ․ “ (Citations omitted;  emphasis in original, internal quotation marks omitted.)  Citicorp Mortgage, Inc. v. Weinstein, supra, 52 Conn.App. 353.

The court finds the plaintiff's evaluations and estimates to be more credible and realistic than those of the defendants.   The court finds the accurate fair market value of the property at the time of the vesting of title to be $205,000.00.   However, some of that low value is due to the fact that the property needs $100,000.00 in repairs, and due to other associated costs.   The court finds that the need for those repairs and costs arose after December 28, 2011, which was when the plaintiff took possession of the property.   During that time, the property sustained water damage where the roof leaked, and the basement became inundated with mold growth.   Also, it was broken into and inhabited by vagrants who caused damage after plaintiff took control.   Police were called and a squatter was arrested.   The building has been minimally maintained while the parties have been in this protracted litigation.   At the time title vested, the building was only in fair condition.   Considering the fact that the present need for repairs and other costs primarily arose during the time when the property was in plaintiff's control, the equities compel the court to conclude that the reduction in value due to those factors should be borne by the plaintiff.   Accordingly the court will add back $100,000 in value in favor of the defendants.   Therefore, the court finds the fair market value to be $305,000.00.

Subtracting the value of the property from the claim, the result is a deficiency in the amount of $261,377.84.

VII

For all of the foregoing reasons, a deficiency judgment shall enter in favor of the substitute plaintiff, Berkshire Bank, and against the defendants, Munsill–Borden Mansion, LLC, Mei–Wa Cheng, Claude M. Brouillard, and Ravenwood Properties, LLC, jointly and severally, in the amount of $261,377.84.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Defendants' opposition includes a closing prayer for relief, ordinarily found in complaints and motions, that requests an “order for the plaintiff to provide defendants access to the subject property to make an accounting of its personal property, arrange for removal and/or assess amount of claims for damages if any to their personal property.”   See Defendants' Opposition, p. 4. That request was not addressed by any party during the hearings nor was it mentioned in any of their briefs or reply briefs.   Moreover, the testimony that was presented reflected that the plaintiff repeatedly told the defendants to return to the property to retrieve their belongings between October 2012 and April 2013, but the defendants did not do so.   Accordingly, the defendants' request for orders contained in their opposition brief is deemed abandoned..  FN1. Defendants' opposition includes a closing prayer for relief, ordinarily found in complaints and motions, that requests an “order for the plaintiff to provide defendants access to the subject property to make an accounting of its personal property, arrange for removal and/or assess amount of claims for damages if any to their personal property.”   See Defendants' Opposition, p. 4. That request was not addressed by any party during the hearings nor was it mentioned in any of their briefs or reply briefs.   Moreover, the testimony that was presented reflected that the plaintiff repeatedly told the defendants to return to the property to retrieve their belongings between October 2012 and April 2013, but the defendants did not do so.   Accordingly, the defendants' request for orders contained in their opposition brief is deemed abandoned.

Vacchelli, Robert F., J.