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NATIONAL CITY REAL ESTATE SERVICES, LLC v.

JULIAN D. TUTTLE ET AL.

(AC 36324)

Beach, Prescott and Bishop, Js.

Argued December 3, 2014—officially released February 3, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Tyma, J. [foreclosure judgment]; Hon. Richard

P. Gilardi, judge trial referee [motion for approval of

sale].)
Thomas E. Minogue, for the appellants (named

defendant et al.).

John J. Ribas, with whom, on the brief, was Jeffrey

M. Knickerbocker, forthe appellee (substitute plaintiff).

Donald F. Salomone, self-represented, the appellee

(successful bidder).
Opinion

PER CURIAM. At issue in this appeal is whether,

following a judgment of foreclosure by sale rendered

in favor of the substitute plaintiff, PNC Bank, N.A.,1

with respectto property owned by the defendants Julian

Tuttle and Janice Tuttle,2

the trial court abused its discretion by approving a sale of the property in an amount

substantially lower than its fair market value. Having

carefully considered the facts and circumstances surrounding the court’s approval of the sale, we conclude

that the court did not abuse its discretion and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and

procedural history. The defendants defaulted on a note

that they had executed in October, 2001, in the principal

amount of $108,660. The note was secured by a mortgage on real property owned by the defendants at 233-

235 Monroe Turnpike in Monroe.

The present foreclosure action was commenced in

December, 2009. On March 12, 2012, the court granted

the plaintiff’s motion for summary judgment as to liability and, on January 22, 2013, rendered judgment of foreclosure by sale. At that time, the court found that the

fair market value of the subject property was $490,000,

and that the debt owed to the plaintiff was $135,245.72.

The court set a sale date of May 25, 2013, and appointed

Attorney Kathleen M. Dunn to act as the committee

overseeing the foreclosure sale. The defendants did not

appeal from the judgment of foreclosure.

The foreclosure sale was conducted on May 25, 2013,

at the property. It was raining heavily at the time of

the sale. The defendants, who continued to occupy the

premises, did not provided access to allow the sale to

be conducted inside or for inspection of the interior

by potential bidders.3 Of the three bidders who had

preregistered with the committee, only two appeared

at the sale. The opening bid was $157,639.63. A total of

forty-two bids were made. Donald F. Salomone placed

the winning bid of $210,500, which was accepted by

the committee.

On May 30, 2013, the committee filed a motion for

acceptance of the committee report and for approval

of the sale. The defendants filed an objection to the

committee’s motion on June 12, 2013. They argued that

the closing bid was unfair and inadequate because it

was $289,500 (42.9 percent) less than the fair market

value of the property as determined by the court at the

time of the foreclosure judgment, and because the low

sale price unfairly deprived the defendants of substantial equity that they needed to satisfy subsequent

encumbrancers and other creditors. They also argued

that the low sale price provided an unwarranted windfall to Salomone. Subsequent encumbrancer JPMorgan

Chase Bank, N.A. (JPMorgan); see footnote 2 of the
opinion; also filed an objection, noting that the final

bid was less than 43 percent of the fair market value

as determined by the court, and arguing that approval

of the sale would be inequitable.

The plaintiff filed a memorandum of law in support

of the committee’s motion seeking approval of the sale.

The plaintiff argued that this court has recognized only

limited grounds upon which a trial court properly could

refuse to approve a sale; see First National Bank of

Chicago v. Maynard, 75 Conn. App. 355, 361, 815 A.2d

1244 (‘‘generally recognized that the grounds [that]

would warrant a court’s refusal to approve a [foreclosure] sale are fraud, misrepresentation, surprise or mistake’’ [internal quotation marks omitted]), cert. denied,

263 Conn. 914, 821 A.2d 768 (2003); none of which

were applicable to the present sale. The plaintiff further

argued that in LaSalle Bank, N.A. v. Randall, 125 Conn.

App. 31, 6 A.3d 175 (2010), this court upheld the

approval of a foreclosure sale at which the winning bid

was less than 40 percent of the fair market value as

determined by the court at the time of the foreclosure judgment.

The successful bidder, Salomone, also filed a memorandum of law in support of approval of the sale. In

addition to the arguments made by the plaintiff, Salomone noted that the most recent court-appointed

appraisal of the property, conducted on May 18, 2013,

in accordance with General Statutes § 49-25, listed the

fair market value of the property at $360,000, substantially less than the $490,000 appraisal.

The court, Hon. Richard P. Gilardi, judge trial referee, heard oral argument on the committee’s motion

on July 15, 2013.4 After listening to the defendants’ arguments that the sale price was too low, and thus inequitable, the court asked the defendants’ counsel, ‘‘what’s

to say if there’s another sale that they’re going to get

[a higher bid]?’’ In response, counsel stated that ‘‘that’s

the chance that everybody’s going to take,’’ and then

he returned to his argument that the final bid was well

below fair market value. When the defendants’ counsel

was asked by the court to distinguish the present case

from LaSalle Bank, N.A., which was cited by the plaintiff, he erroneously suggested that the disparity between

the sale price and the fair market value in the present

case was greater than the disparity in that case. The

plaintiff’s counsel later corrected the defendants’ counsel, however, explaining that in LaSalle Bank, N.A., the

court had approved a sale that had generated less than

40 percent of the foreclosed property’s fair market

value, which actually was a lower percentage than the

42.9 percent difference in the present case. The plaintiff’s counsel also argued that the defendants had not

challenged the mannerin which the sale was conducted,

that any further delay to hold another sale would only

prejudice the plaintiff further, and that there was no
evidence that another sale would yield a better outcome

for the defendants.

The court granted the committee’s motion for

approval of the sale without explanation on November

15, 2013. This appeal followed. On January 3, 2014, the

defendants filed a motion for articulation asking the

trial court to state the factual and legal bases for its

decision approving the sale. The court issued an articulation on February 7, 2014. Ultimately, the court concluded as follows: ‘‘In the present case, the court

balanced the equities and determined equity favored

approval of the sale. . . . As was indicated, the defendants have submitted no factual or legal claims that

the procedure of the foreclosure committee and the

equitable process of the court was flawed. In summary,

the [defendants] did not offer any substantive argument

to preclude this court’s approval of the committee recommendation.’’ (Citation omitted.) The defendants did

not seek review of the court’s articulation or ask for

further clarification of the court’s ruling. See Practice

Book §§ 66-5 and 66-7.

The defendants claim on appeal that the court abused

its discretion by approving the foreclosure sale. On the

basis of the record before us, we disagree.

‘‘[T]he applicable standard of review applied to a

court’s approval of a committee sale is the abuse of

discretion standard. . . . [A]n action of foreclosure is

peculiarly equitable and . . . the court exercises discretion in ensuring that justice [is] done. . . . In

approving the committee sale, [t]he court must exercise

its discretion and equitable powers with fairness not

only to the foreclosing mortgagee, but also to . . . the

owners [of the foreclosed property]. . . . Most importantly, the court possesses the authority to refuse to

confirm sales upon equitable grounds where [the sales

are] found to be unfair or the price bid was inadequate.’’

(Citation omitted; internal quotation marks omitted.)

Rockville Bank v. Victory Outreach Ministries, Inc.,

125 Conn. App. 1, 9–10, 6 A.3d 177 (2010).

It is not unusual for a foreclosure sale to yield considerably less than the property’s appraised fair market

value. See Fidelity Trust Co. v. Irick, 206 Conn. 484,

490, 538 A.2d 1027 (1988). ‘‘[A] foreclosure by sale may

result in bids not only less than the appraised value of

the property, but even less than the foreclosing mortgagee’s loan, allowable expenses and taxes. Because the

trial court has control of the foreclosure proceedings, it

can, in the exercise of its discretion, accept or reject

a proposed sale.’’ Id. Further, as recognized by our

Supreme Court, ‘‘[t]he usual notion of fair market value

is inconsistent with the notion of a foreclosure sale.

[F]air market value is generally said to be the value that

would be fixed in fair negotiations between a desirous

buyer and a willing seller, neither under any undue

compulsion to make a deal. . . . An auction sale, such
as a foreclosure sale, is not designed to reach that result

because there is no opportunity for negotiations, and

the seller, namely, the committee appointed by the trial

court to conduct the sale, is under compulsion to make

a deal, in the sense that it is required to take the highest

bid, subject only to the approval of the court.’’(Citations

omitted; emphasis in original; internal quotation marks

omitted.) New England Savings Bank v. Lopez, 227

Conn. 270, 280, 630 A.2d 1010 (1993). No appellate case

has established whether there is a certain percentage

of fair market value below which a sale would trigger

a trial court’s obligation to reject a foreclosure sale on

the ground that the price was inadequate or unfair as

a matter of law. Nevertheless, this court has affirmed

a court’s approval of a foreclosure sale yielding as little

as 40 percent of the property’s fair market value. See

LaSalle Bank, N.A. v. Randall, supra, 125 Conn. App. 31.

Turning to the present matter, although it is undisputed that the price obtained at the foreclosure sale

was substantially less than the fair market value determined by the court at the time of the foreclosure judgment, the defendants presented no claim to the court

thatthe low sale price was the result of any irregularities

in the sale process or in ‘‘the equitable process of the

court.’’ The defendants’ claim, rather, was solely that

the sale price was inadequate per se. At the hearing

on the motion for approval of the sale, however, the

defendants did not produce a witness or proffer any

other evidence from which the court could have found

that the sale price was fundamentally unfair under the

circumstances presented orthat a new sale likely would

have yielded a better outcome. When the court directly

asked the defendants’ counsel whether the defendants

had any indication that they would get better offers at

a new sale, counsel answered only that there was a

chance. Such speculation alone cannot provide a legal

basis on which to deny approval of a foreclosure sale

that was conducted without any irregularities.

Moreover, there were also a number of factors before

the court that support the court’s approval of the sale.

First, the foreclosure action had been pending for a

number of years, and further delay would have prejudiced the plaintiff. Also, the court-ordered appraisal of

the property that was conducted only a few weeks prior

to the sale found thatthe fair market value was $360,000,

cutting nearly in half the difference between the sale

price and the fair market value as determined at the

time of the foreclosure judgment. Finally, it could fairly

be argued that the defendants’ own actions may have

contributed to a lower sale price. The defendants denied

the committee and the bidders access to the interior

of the property, so that the auction had to be conducted

in the rain, and the potential bidders, who would be

required to take the property ‘‘as is,’’ were unable to

conduct an interior inspection.
The court indicated in its articulation of its decision

to approve the sale that it had ‘‘balanced the equities

and determined equity favored approval of the sale.’’

The court did not further discuss what factors it had

considered or the weight it attached to any particular

factor in balancing the equities in the present case, nor

was it asked to do so by the parties in a motion for

further articulation. ‘‘The general rule that a judgment,

rendered by a court with jurisdiction, is presumed to

be valid and not clearly erroneous until so demonstrated

raises a presumption that the rendering court acted

only after due consideration, in conformity with the law

and in accordance with its duty. . . . It is important to

recognize that a claim of error cannot be predicated

on an assumption that the trial court acted incorrectly.

. . . Rather, we are entitled to assume, unless it

appears to the contrary, that the trial court . . . acted

properly, including considering the applicable legal

principles.’’ (Citations omitted; internal quotation

marks omitted.’’ Johnson v. de Toledo, 61 Conn. App.

156, 161–62, 763 A.2d 28 (2000), appeal dismissed, 258

Conn. 732, 785 A.2d 192 (2001). On the basis of our

review of the record provided, we presume that the

court properly balanced the equities and determined

that equity favored approving the sale. The defendants

have, therefore, failed to persuade us that the court

abused its discretion in making that determination.

The judgment is affirmed.

1 The court granted a motion to substitute PNC Bank, N.A., for the original

plaintiff, National City Real Estate Services, LLC. We therefore refer in this

opinion to PNC Bank, N.A., as the plaintiff.

2 The complaint named JPMorgan Chase Bank, N.A. (JPMorgan), as an

additional defendant by virtue of a second mortgage that it held on the

subject property that was subsequent in right to the plaintiff’s mortgage.

Because JPMorgan has not participated in this appeal, we refer to the Tuttles

collectively as the defendants in this opinion.

3 Although not expressly found by the court, these facts are contained in

the committee’s report, which was accepted by the court and not challenged

on appeal.

4 Counsel for JPMorgan did not appear at the hearing.