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DEUTSCHE BANK TRUST CO. AMERICAS, TRUSTEE v.

DEGENNARO—CONCURRENCE

FLYNN, J., concurring. I concur with the majority

opinion but write separately because, although it would

not change the result in this case, I fail to see how the

interlocutory summary judgment that the trial court

rendered on ‘‘liability’’ could find the defendant personally liable for anything as a matter of law.

Section 17-50 of the Practice Book entitled ‘‘Triable

Issue as to Damages Only,’’ provides in pertinent part:

‘‘A summary judgment, interlocutory in character, may

be rendered on the issue of liability alone, although

there is a genuine issue as to damages. In such case

the judicial authority shall order an immediate hearing

before a judge trial referee, before the court, or before

a jury, whichever may be proper, to determine the

amount of the damages. . . .’’ This rule is designed to

deal with cases where a plaintiff is liable for some

amount of at least nominal damages. When used before

the court has determined what type of foreclosure judgment may enter, there is no certainty that the defendant

debtor is liable even for nominal damages.

This was an action to foreclose a mortgage, not simply

a suit on a note. Although a mortgage note was signed

by the defendant, Lynn DeGennaro, together with a

mortgage deed, at the time of entry of the interlocutory

‘‘summary judgment on liability,’’ there was no legal

basis to determine that the defendant had any personal

liability. This is so because the court had not determined

whether the judgment of foreclosure would be a strict

foreclosure, which would be rendered if there were no

redemption and vest title in the plaintiff mortgagee, or

a foreclosure by sale at auction. If a strict foreclosure

judgment and there were a redemption, there could be

no future monetary liability on the defendant. If a strict

foreclosure judgment, no redemption, and no plaintiff’s

timely deficiency motion ‘‘[a]t any time within thirty

days after the time limited for redemption expired,’’1

there would not be a money judgment against the defendant debtor. If a foreclosure by sale, and the sales proceeds would not fully compensate the foreclosing

creditor in full, ‘‘the deficiency shall be determined’’

pursuant to General Statutes § 49-28. Underthat statute,

if the plaintiff were the party who moved forforeclosure

by sale, ‘‘no judgment shall be rendered in the [foreclosure] suit orin any other’’ until one half of the difference

between the appraised value and the selling price has

been credited. As pointed out in the treatise by Denis

Caron and Geoffrey Milne, ‘‘[u]nder certain circumstances . . . this formula may operate to eradicate the

deficiency completely.’’2

Under these circumstances, although it has become

very common, making a motion for interlocutory sum-
mary judgment on liability in a foreclosure case is the

procedural equivalent of trying to drive a nail with the

blade of a saw.

1 General Statutes § 49-14 (a).

2 D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 10-5:2,

p. 575.