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CUSTOMERS BANK v. JODIE M. BOXER ET AL.

(AC 35465)

Gruendel, Robinson and Alvord, Js.*

Argued November 18, 2013—officially released March 4, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Housing Session, Hon. Jack L.

Grogins, judge trial referee.)

Abram J. Heisler, for the appellant (defendant Carlton Tucker).

Andrew P. Barsom, with whom, on the brief, was

Alena C. Gfeller, for the appellee (plaintiff).
Opinion

ALVORD, J. The defendant Carlton Tucker appeals

from the trial court’s judgment of immediate possession

in favor of the plaintiff, Customers Bank.1 On appeal,

the defendant claims that the court erred in finding that

he was not a bona fide tenant as defined by Title VII

of the Helping Families Save Their Homes Act of 2009,

known as the Protecting Tenants at Foreclosure Act of

2009, Pub. L. No. 111-22, §§ 701–704, 123 Stat. 1660

(PTFA).2 We affirm the judgment of the trial court.

The record reveals the following facts and procedural

history. The plaintiff acquired title to 426 Westover

Road, Stamford (property) from Westover Enterprise,

LLC (prior owner) on February 23, 2012, via a judgment

of strict foreclosure. The defendant was a resident of

the property when the plaintiff took possession. The

plaintiff initially exercised its right to terminate the

tenancy of the defendant by serving him with a notice

to quit on April 2, 2012, that required the defendant to

quit possession of the property on or before July 3,

2012 (first notice). Following the service of the first

notice, the defendant did not contact the plaintiff,

tenderrent or use and occupancy payments to the plaintiff or the prior owner, and ‘‘failed, neglected, and/or

refused to provide proof of a valid lease agreement.’’

On or about May 7, 2012, the plaintiff served the defendant with a supplemental notice to quit, revoking the

first notice and directing the defendant to quit possession of the property on or before May 15, 2012 (second

notice). The defendant did not quit possession of the

property at that time.

Thereafter, in late May, 2012, the plaintiff commenced

this action against the defendant. In the second count

of its operative complaint, the plaintiff alleged that the

defendant’s right or privilege to occupy the property

had terminated.3 The plaintiff asserted that the defendant was not a ‘‘ ‘bona fide’ [tenant] under the ambit

of the [PTFA]’’ due to the defendant’s failure to ‘‘produce any lease which sets forth an arm’s-length transaction to enter such tenancy and requires payment of rent

that is not substantially less than the fair market rent

of the subject property . . . .’’ On September 6, 2012,

the court ordered the defendant to make use and occupancy payments of $4000 per month. The defendant did

not comply with that order and failed to make any of

the use and occupancy payments, and, thus, judgment

for possession was rendered in the plaintiff’s favor on

September 27, 2012. The defendant filed a motion to

open the judgment, which the court granted on October

16, 2012. The defendant subsequently filed an answer

and special defenses,4 asserting that the plaintiff failed

to provide ninety days’ notice to the defendant as

required by the PTFA.

On November 8, 2012, the defendant stipulated to the
plaintiff’s ability to prove its prima facie case under

count two of the complaint, and the trial was bifurcated

to allow the defendant to present evidence regarding

the pleaded special defenses, namely, the applicability

of the PTFA.5 The court heard evidence regarding the

defendant’s special defense on November 15, 2012. Testimony revealed that there was a six month written

lease between the prior owner of the property and the

defendant for a term of tenancy beginning on January

19, 2012, and ending on June 31, 2012, that provided

for monthly rental payments of $5000. The defendant

testified that he did not make any rental payments to

the prior owner of the property, and the prior owner

testified that he never received any rent from the defendant. Instead, the defendant and the prior owner both

testified that they modified the six month written lease

via an oral agreement,6 whereby ‘‘in lieu of the $5000,

being that the property needed work,’’ the defendant

‘‘would do some things there to maintain the property.’’

The defendant stated that he undertook certain

expenses in connection with his occupancy of the property, including repairing a fence on the property, painting the interior and exterior of the premises, and filling

the oil tank.7 On the basis of this oral agreement with

the prior owner, the defendant argued that he is a bona

fide tenant underthe PTFA, and that the plaintiff should

have provided him with a ninety day notice to quit.

At the conclusion of evidence, the trial court ordered

the parties to file simultaneous briefs on January 3,

2013, regarding the applicability of the PTFA. In a written memorandum of decision released on February 28,

2013, the trial court rendered judgment for immediate

possession in favor of the plaintiff. In its decision, the

court concluded that the defendant ‘‘ha[s] failed to

maintain [his] burden of proof with respect to the

alleged defenses by, most notably, failing to prove the

third prong of the test for establishing [his] status as a

bona fide [tenant] under the [PTFA],’’ and therefore the

PTFA was inapplicable. This appeal followed.

On appeal, the defendant argues that the court ‘‘erred

in stating that the defendant did not assert sufficient

facts to trigger the ninety day notice required by the

[PTFA].’’ The defendant specifically challenges the

court’s ruling that the defendant’s ‘‘expenditures in

improving the property could not constitute proof of a

bona fide lease pursuant to the [PTFA]’’ and urges us

to interpret the act broadly. We disagree and affirm the

judgment of the trial court.

Our review of the defendant’s claim of error first

requires us to determine what constitutes a bona fide

tenant and lease pursuant to the PTFA. Accordingly,

we begin with a statutory analysis of the PTFA. ‘‘Issues

of statutory construction raise questions of law, over

which we exercise plenary review. . . . The process

of statutory interpretation involves the determination
of the meaning of the statutory language as applied to

the facts of the case, including the question of whether

the language does so apply. . . . In seeking to determine that meaning, General Statutes § 1–2z directs us

first to consider the text of the statute itself and its

relationship to other statutes. If, after examining such

text and considering such relationship, the meaning of

such text is plain and unambiguous and does not yield

absurd or unworkable results, extratextual evidence of

the meaning of the statute shall not be considered.’’

(Internal quotation marks omitted.) Doctor’s Associates, Inc. v. Windham, 146 Conn. App. 768, 783–84, 81

A.3d 230 (2013).

‘‘Moreover, [t]his court will not reverse the factual

findings of the trial court unless they are clearly erroneous. . . . A finding of fact is clearly erroneous when

there is no evidence in the record to support it . . .

or when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed. . . . In making this determination, every

reasonable presumption must be given in favor of the

trial court’s ruling.’’ (Internal quotation marks omitted.)

Petrucelli v. Travelers Property Casualty Ins. Co., 146

Conn. App. 631, 636, 79 A.3d 895 (2013).

The PTFA provides in relevant part that ‘‘[i]n the case

of any foreclosure on a federally-related mortgage loan

or on any dwelling or residential real property after the

date of enactment of this title, any immediate successor

in interest in such property pursuant to the foreclosure

shall assume such interest subject to . . . the provision, by such successor in interest of a notice to vacate

to any bona fide tenant at least [ninety] days before

the effective date of such notice . . . .’’ (Emphasis

added.) Pub. L. No. 111-22, § 702 (a). The PTFA establishes a tripartite conjunctive test for establishing a

bona fide lease or tenancy: ‘‘(1) the mortgagor or the

child, spouse, or parent of the mortgagor under the

contract is not the tenant; (2) the lease or tenancy was

the result of an arms-length transaction; and (3) the

lease or tenancy requires the receipt of rent that is

not substantially less than fair market rent for the

property or the unit’s rent is reduced or subsidized due

to a Federal, State or local subsidy.’’ (Emphasis added.)

Pub. L. No. 111-22, § 702 (b). At trial and now on appeal,

the parties dispute whether the defendant’s tenancy

satisfies the third prong of the test and whether ‘‘rent’’

within the PTFA can include funds spent improving the

premises in lieu of rental payments.8 This issue is one

of first impression for this court.

The PTFA does not define the term ‘‘receipt of rent.’’

Nevertheless, we turn to our General Statutes for guidance as the PTFA does not preempt state law with

respect to the requirements of eviction proceedings. See

Federal National Mortgage Assn. v. Williams, United
States District Court, Docket No. CIV. S-11-3067 (KJM)

(E.D. Cal. January 4, 2012) (‘‘federal courts have held

that the [PTFA] does not create a federal private right of

action, but indeed provides directives to state courts’’);

Federal National Mortgage Assn. v. Hammond, United

States District Court, Docket No. 11-00867 GAF (OPX)

(C.D. Cal. June 22, 2011) (‘‘[t]he PTFA is not a recognized area of complete preemption’’); Nativi v.

Deutsche Bank National Trust Co., United States District Court, Docket No. 09-06096 (PVT) (N.D. Cal. May

24, 2010) (‘‘[t]he PTFA was intended to allow tenants

who are victims of the foreclosing crisis a protection

that can be used in the state courts to combat unlawful evictions’’).

General Statutes § 47a-1 (h) defines ‘‘rent’’ as ‘‘all

periodic payments to be made to the landlord under

the rental agreement.’’9 Black’s Law Dictionary defines

‘‘payment’’ as ‘‘[t]he money or other valuable thing so

delivered in satisfaction of an obligation.’’ Black’s Law

Dictionary (9th Ed. 2009); see also Commissioner on

HumanRights & Opportunities ex rel.Arnold v. Forvil,

302 Conn. 263, 274, 25 A.3d 632 (2011) (citing to definition of payment in Black’s Law Dictionary in order to

reach conclusion that ‘‘to constitute income, something

does not need to be money; rather, it can be something

else of value’’). Accordingly, we consider a bona fide

lease or tenancy for purposes of applying the PTFA in

Connecticut to be a lease or tenancy that requires the

receipt of periodic monetary payments or periodic payments of something of value, to the landlord in satisfaction of the tenant’s obligation, ‘‘that [are] not

substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to

a Federal, State or local subsidy.’’ (Emphasis added.)

Pub. L. No. 111-22, § 702 (b). Applying the law to these

facts, the defendant must establish that the oral

agreement for repairs and improvements in lieu of rent

required the receipt of periodic payments of something

of value delivered to the prior owner in satisfaction

of the defendant’s obligation and that the value was

reasonably commensurate with the fair market rent of

the property. Failure to establish either of these elements renders the PTFA inapplicable.

On the basis of the testimony of the defendant and

the prior owner, as well as the other evidence before

it, the trial court found that ‘‘the [defendant] ha[s] not

established [that] the value of the repairs or improvements was commensurate with the fair market value’’10

rent of the property. ‘‘[I]t is well established that [i]t is

within the province of the trial court, when sitting as

the fact finder, to weigh the evidence presented and

determine the credibility and effect to be given the

evidence.’’ (Internal quotation marks omitted.) Rutka

v. Meriden, 145 Conn. App. 202, 211–12, 75 A.3d 722

(2013). Our review of the record reveals that there was

sufficient evidence to support the trial court’s conclu-
sion. Accordingly, the defendant failed to establish that

his lease or tenancy required the receipt of rent that

was not substantially less than fair market rent for the

property, and the court properly concluded that he did

not qualify for the protections of the PTFA.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

Jodie M. Boxer and Rose Tucker were also named as defendants in the

action brought by the plaintiff. On September 27, 2012, a motion for default

for failure to appear was granted as to Boxer and the case was withdrawn

by the plaintiff as to Rose Tucker. Neither defendant is a party to this appeal.

We therefore refer in this opinion to Carlton Tucker as the defendant.

2

Initially set to expire on December 31, 2012, the PTFA was extended to

December 31, 2014, by the Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. No. 111–203, § 1484, 124 Stat. 2204 (2010).

3 The plaintiff initially brought a three count complaint against the defendant. In its first count, the plaintiff alleged nonpayment, and in its third

count, the plaintiff alleged that the defendant’s tenancy had expired by lapse

of time. The plaintiff subsequently withdrew these counts.

4 The defendant raised four special defenses in total. When agreeing to

stipulate to the provisions of the plaintiff’s second count, however, he stated

that the ‘‘crux of [his] defense’’ was the PTFA and whether the required

ninety days’ notice was given.

5 The defendant has raised his claim under the PTFA in a special defense,

and ‘‘the general rule is that a defendant who pleads a special defense bears

the burden on that issue . . . .’’ National Publishing Co. v. Hartford Fire

Ins. Co., 287 Conn. 664, 673, 949 A.2d 1203 (2008). Furthermore, he has

stipulated to the plaintiff’s ability to prove its prima facie case that ‘‘[t]o

the extent the [defendant] once had a right or privilege to occupy [the

property], [that] right or privilege has since terminated by virtue of the

judgment of strict foreclosure and absolute vesting of the title [to the property] in the plaintiff . . . and the plaintiff’s service of [the second notice].’’

6 The defendant could not provide the exact date of this oral agreement

with the prior owner, other than stating that it ‘‘was around the time that

we signed the lease.’’ He also testified that he thought that they might have

‘‘entered into the agreement prior to the signing of the lease.’’ Similarly, the

prior owner testified that he and the defendant entered into their oral

agreement ‘‘[a]round the same—same week or two’’ when the written lease

was signed.

7 The defendant testified that he spent $7150 to repair the fence and

$11,750 to paint the interior and exterior of the premises. The defendant

submitted an ‘‘invoice’’ for the repair of the fence, which listed a ‘‘shipped

to’’ date of March 1, 2012, and an ‘‘estimate’’ for the painting of the premises,

which was dated August 2, 2012. Both the invoice and the estimate included

the notation that they were paid in cash. The defendant also submitted an

invoice dated June 1, 2012, for $3709.38 for oil, which consisted of a ‘‘[b]alance [b]rought [f]orward’’ of $3655.55 and ‘‘[f]inance [c]harges’’ totaling

$53.83. There was no evidence as to whether the defendant paid this invoice.

8 We note that although the written lease states that any modifications to

the agreement must be in writing signed by the defendant and the prior

owner, the record reveals that both the defendant and the prior owner

agreed that the written lease was modified by their oral agreement to allow

the defendant to spend funds improving the property in lieu of rental payments, and that the defendant was occupying the property pursuant to the

oral agreement. ‘‘Under the general rules applicable to oral modification of

written contracts, in the absence of statutory restrictions a written lease

may be subsequently modified as to the amount of rent, by oral agreement.’’

Baier v. Smith, 120 Conn. 568, 571, 181 A. 618 (1935); see also Taft Realty

Corp. v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597

(1959) (‘‘[t]he rent provided in a written lease may even be changed by a

subsequent parol agreement’’).

9 General Statutes § 47a-1 (i) defines ‘‘rental agreement’’ in relevant part

as ‘‘all agreements, written or oral, and valid rules and regulations . . .

embodying the terms and conditions concerning the use and occupancy of

a dwelling unit or premises.’’

10 The trial court considered the fair market rent of the property to be ‘‘at
least $4500 on a monthly basis,’’ but did not make an explicit finding of the

exact amount.